GIFT  OF 

/i;.    MALBONE   W.    riRAHiAl^. 


Digitized  by  tine  Internet  Arcliive 

in  2008  witli  funding  from 

IVIicrosoft  Corporation 


littp://www.arcliive.org/details/concerningjusticOOemer 


PUBLISHED   ON   THE   FOUNDATION 
ESTABLISHED   IN   MEMORY   OF 

HENRY  WELDON   BARNES 

OF  THE  CLASS  OF  1882,  YALE  COLLEGE 


STORRS  LECTURES 
Published  by  Yale  University  Press 

THE  REFORM  OF  LEGAL  PROCEDURE.     By 
MooRFiELD  Storey.     Price  $1.35  net  delivered. 

THE    JUDICIARY    AND    THE    PEOPLE.      By 

Frederick  N.  Jddson.      Price    $1.35  net  de- 
livered. 

CONCERNING    JUSTICE.       By     Lucilius    A. 
Emery.    Price  $1.15  net  delivered. 


Uniform  in  style  with  the  Storrs  Lectures 

INTERNATIONAL  ARBITRATION  AND  PRO- 
CEDURE. By  Robert  C.  Morris,  with  a 
foreword  by  President  Taft.  Price  $1.35  net 
delivered. 


CONCERNING 
JUSTICE 

BY 

LUCILIUS  A.   EMERY 


NEW  HAVEN:    YALE   UNIVERSITY   PRESS 

LONDON:     HUMPHREY   MILFORD 

OXFORD   UNIVERSITY    PRESS 

MDCCCCXIV 


COPYRIGHT,   I  9 14 
BY    YALE    UNIVERSITY    PRESS 


First  printed  August,  1914,  1000  copies 


■g 


CO 
CD 

CO 


CO  t  J^C-- 


TO   MY   CHILDREN 

HENRY  CROSBY  EMERY 
ANNE  CROSBY  EMERY  ALLINSON 


THE  ADDRESSES  CONTAINED  IN  THIS  BOOK  WERE 
DELIVERED  IN  THE  WILLIAM  L.  STORRS  LECTURE 
SERIES,  19 14,  BEFORE  THE  LAW  SCHOOL  OF  YALE 
UNIVERSITY,  NEW  HAVEN,  CONNECTICUT. 


CONTENTS 

CHAPTER  PAGE 

^  I.    The  Problem  Stated.     Theories  as  to 

THE     SoXJRCE     of    JUSTICE.      DEFINITIONS 

OF  Justice 3 

II.    The    Problem    of    Rights.      Different 

Theories  as  to  the  Source  of  Rights      31 

III.  The  Problem  of  Rights  Continued.    The 

Need   of  Liberty  of  Action  for  the 
Individual 43 

IV.  Justice   the   Equilibrium   Between  the 

Freedom  of  the   Individual   and  the 
Safety  of  Society 56 

V.  Justice  Can  Be  Secured  only  through 
Governmental  Action.  The  Best  Form 
of  Government 77 

VI.  The  Necessity  of  Constitutional  Limi- 
tations UPON  the  Powers  of  the 
Government.    Bills  of  Rights  ...       95 

VII.  The  Interpretation  and  Enforcement 
of  Constitutional  Limitations  Neces- 
sarily A  Function  of  the  Judiciary  .     no 

VIII.    An  Independent  and  Impartial  Judiciary 

Essential  for  Justice 121 

IX.  The  Necessity  of  Maintaining  UNDiMm- 
iSHED  the  Constitutional  Limitations 
AND  THE  Power  of  the  Courts  to 
Enforce  Them. —  Conclusion  ....     146 


CONCERNING   JUSTICE 


CONCERNING  JUSTICE 

CHAPTER   I 

THE  PROBLEM  STATED.    THEORIES  AS 

TO  THE  SOURCE  OF  JUSTICE. 

DEFINITIONS  OF  JUSTICE 

FOR  centuries  now  much  has  been  written 
and  proclaimed  concerning  justice  and  to- 
day the  word  seems  to  be  more  than  ever  upon 
the  lips  of  men,  more  than  ever  used,  but  not 
always  appositely,  in  arguments  for  proposed 
poUtical  action.  Hence  it  may  not  be  inappro- 
priate to  the  time  and  occasion  to  venture,  not 
answers  to,  but  some  observations  upon  the  ques- 
tions, what  is  justice,  and  how  can  it  be  secured. 
It  was  declared  by  the  Roman  jurist  Ulpian,  cen- 
turies ago,  that  students  of  law  should  also  be 
students  of  justice. 

By  way  of  prelude,  however,  and  in  the  hope 
of  accentuating  the  main  question  and  present- 
ing the  subject  more  vividly  by  comparison  and 
3 


CONCERNING  JUSTICE 
contrast,  I  would  recall  to  your  minds  another 
and    even    more    fundamental    question    asked 
twenty  centuries  ago  in  a  judicial  proceeding  in 
distant  Judea.    It  is  related  that  when  Jesus, 
upon  his  accusation  before  Pilate,   clauned  in 
defense  that  he  had  "come  into  the  world  to  bear 
witness  unto  the  truth,"  Pilate  inquired  of  him 
"What  is  truth?";  but  it  is  further  related  that 
when  Pilate  "had  said  this  he  went  out  again 
unto  the  Jews."    Apparently  he  did  not  wait 
for  an  answer.    Perhaps  he  repented  of  his  ques- 
tion as  soon  as  asked  and  went  out  to  escape 
an  answer.    Men  before  and  since  Pilate  have 
sought  to  avoid  hearing  the  truth. 

Indeed,  however  grave  the  question,  however 
essential  the  answer  to  their  well-being,  there 
does  not  seem  to  be  even  now  on  the  part  of  the 
multitude  an  earnest  desire  for  the  truth.  Their 
wishes  and  emotions  cloud  their  vision  and  they 
are  reluctant  to  have  those  clouds  brushed  aside 
lest  the  truth  thus  revealed  be  harsh  and  con- 
demnatory. The  truth  often  causes  pain.  As 
4 


THE  PROBLEM  STATED 
said  by  the  Preacher,  "He  that  increaseth  knowl- 
edge increaseth  sorrow."  People  generally  give 
much  the  greater  welcome  and  heed  to  him  who 
tells  them  that  their  desires  and  schemes  are 
righteous  and  can  be  realized,  than  to  him  who 
tells  them  that  their  desires  are  selfish  or  that 
their  schemes  are  impracticable.  It  has  always 
been  the  few  who  have  sought  the  truth,  resolute 
to  find  it  and  declare  it,  whether  pleasant  or  un- 
pleasant, in  accord  with  the  wishes  of  mankind 
or  otherwise.  Such  men  have  sometimes  suffered 
martyrdom  in  the  past,  and  often  incur  hostility 
in  the  present,  even  when  seeking  that  truth  on 
which  alone  justice  can  securely  rest. 

Nevertheless,  so  closely  linked  are  truth  and 
justice  in  the  speech,  if  not  the  minds,  of  men, 
there  should  be  some  consideration  of  Pilate's 
question.  Whether  truth  is  absolute  or  only 
relative  has  been  perhaps  the  most  actively  dis- 
cussed topic  in  the  field  of  philosophy  for  the 
last  decade.  Into  this  discussion,  however,  we 
need  not  enter,  for  such  discussion  is  really  over 
S 


CONCERNING  JUSTICE 
the  problem  of  determining  the  proper  criterion 
of  truth.  Wherever  be  this  criterion,  whether 
in  some  quality  of  inherent  rationality  or  in  some 
utiHtarian  test  of  practicability,  the  truth  itself 
has  some  attributes  so  far  unquestioned  and  of 
which  we  may  feel  certain  as  being  inherent, 
necessary,  and  self-evident. 

Truth  isjincornpromising.    It  is  unadaptable; 
all  else  must  be  adapted  to  it.     It  is  not  a  matter 
of  convention  among  men,  is  not  established  even 
by  their  unanimous  assent,  and  it  does  not  change 
with  changes  of  opinion.    It  is  identical  through- 
out time  and  space.    If  it  be  true  now  that  since 
creation  the  earth  has  swung  in  an  orbit  round 
the  sun,  it  was  true  before  the  birth  of  Copemi- 
I  cus  and  Galileo.    If  it  be  true  now  that  the  sum 
'  of  the  three  angles  of  a  triangle  is  equal  to  the 
I  sum  of  two  right  angles,  it  was  always  true  and 
'  always  will  be  true,  true  at  the  poles  and  at  the 
equator,  true  among  all  peoples  and  in  all  coun- 
tries, true  alike  in  monarchies,  oligarchies,  and 

democracies. 

6 


THE   PROBLEM   STATED 

Truth  is  also  single.  There  are  no  different 
kinds  of  truth,  though  there  may  be  innumerable 
kinds  of  propositions  of  which  truth  may  or  may 
not  be  predicated.  Whichever  criterion  the 
philosophers  may  finally  agree  upon,  it  will  hold 
in  all  propositions  ahke.  The  truth  of  a  proposi- 
tion in  mathematics  is  the  same  as  the  truth  of  a 
proposition  in  any  other  science,  physical,  social, 
political,  or  theological.  It  can  be  no  more  nor 
less  true  in  each  and  all.  Again,  in  every  science, 
social  and  political  as  well  as  others,  and  as  to 
every  proposition  in  any  science,  the  truth  is  to 
be  discovered,  not  assumed  by  mere  convention; 
and  men  must  discover  it  and  discover  it  fully  at 
their  peril.  Failure  even  after  the  utmost  effort 
will  not  be  forgiven.  If  the  truth  be  found  it 
will  be  a  sure  guide  in  life.  If  it  be  not  found  the 
lives  of  men  will  so  far  go  awry.  That  it  may  be 
difficult  to  find,  that  we  may  never  be  sure  we 
have  found  it,  makes  no  difference. 

Are  there  any  attributes  of  justice  of  which 
we  can  speak  so  confidently  as  being  necessary, 
7 


CONCERNING  JUSTICE 

inherent,  and  self-evident?  That  justice  ranks 
next  to  truth,  if  not  with  it,  seems  to  have  been, 
and  to  be,  the  general  judgment  of  mankind.  It 
has  engaged  the  thought  and  fired  the  imagina- 
tion of  the  greatest  minds.  A  few  quotations 
from  such,  ranging  from  ancient  to  modem  times, 
will  illustrate  this.  The  Hebrew  Psalmist  gloried 
that  "justice  and  judgment"  were  the  habitation 
of  Jehovah's  throne.  Aristotle  wrote,  "political 
science  is  the  most  excellent  of  all  the  arts  and 
sciences,  and  the  end  sought  for  in  pohtical  science 
is  the  greatest  good  for  man,  which  is  justice,  for 
-  justice  is  the  interest  of  all."  Early  in  the  12th 
century  the  jurist  Irnerius,  distinguished  for  his 
learning  and  for  his  zeal  in  promoting  the  revival 
of  the  study  of  law  and  jurisprudence,  and  also 
as  the  reputed  founder  of  the  famous  Law  School 
at  Bologna,  imaged  justice  as  "clothed  with  dig- 
nity ineffable,  shining  with  reason  and  equity, 
and  supported  by  Religion,  Loyalty,  Charity, 
Retribution,  Reverence,  and  Truth." 
Six  centuries  later  Addison,  famed  as  a  clear 


THE  PROBLEM  STATED 
thinker  and  writer,  thus  wrote  of  justice:  "There 
is  no  virtue  so  truly  great  and  godlike  as  justice. 
.  .  .  Omniscience  and  omnipotence  are  requisites 
for  the  fuU  exercise  of  it."  Almost  in  our  own 
time  Daniel  Webster,  called  in  his  day  the  great 
expounder  and  even  now  reckoned  among  the 
greatest  of  men  intellectually,  in  his  eulogy  upon 
Justice  Story  thus  apostrophized  justice:  "Jus- 
tice is  the  great  interest  of  man  on  earth.  It  is 
the  ligament  which  holds  civilized  beings  and 
civilized  nations  together.  Wherever  her  temple 
stands  and  so  long  as  it  is  duly  honored,  there  is 
a  foundation  for  social  security,  general  happi- 
ness, and  the  improvement  and  progress  of  our 
race."  Perhaps,  however,  none  of  these  lauda- 
tions is  so  vividly  impressive  as  is  the  pithy 
remark  of  an  old  English  judge  that  "injustice 
cuts  to  the  bone." 

But  what  is  this  justice,  declared  to  be  so  great 

a  virtue,  so  ineffable,  so  supremely  important? 

I  have  said  we  feel  certain  of  some  attributes  of 

truth.    Do  we  know  or  can  we  know  anything 

9 


CONCERNING  JUSTICE 

certain  about  justice?  Is  it  something  above  and 
apart  from  the  will  of  men,  or  is  it  simply  a  matter 
of  convention  among  men?  Is  it  immutable,  or 
does  its  nature  change  with  changing  times  and 
conditions?  If  mutable,  does  it  change  of  itself 
or  do  men  change  it?  Is  it  universal  or  local,  the 
same  everywhere  or  is  it  different  in  different 
locahties?  Is  it  the  same  for  all  men  and  races 
of  men  or  does  it  differ  according  to  classes  and 
races?  Again,  is  it  single  or  diverse  in  its  nature? 
Is  there  more  than  one  kind  of  justice?  We  hear 
of  natural  justice,  social  justice,  industrial  jus- 
tice, political  justice.  What  do  they  who  use 
those  terms  mean  by  them?  Do  nature,  so- 
ciety, industry,  politics,  each  have  a  different 
criterion?  Still  again,  and  briefly,  is  justice  an 
inexorable  law  like  the  law  of  gravitation  or  can 
its  operation  have  exceptions?  Is  it  simply  a 
quality  of  action  or  conduct,  or,  as  stated  by 
Ulpian,  is  it  a  disposition  or  state  of  mind?  Fi- 
nally, is  it  a  reality  or,  as  Falstaff  said  of  honor, 
is  it  after  all  "a  word,"  ''a  mere  scutcheon?" 

lO 


THE  PROBLEM  STATED 
I  am  not  so  presumptuous  as  to  venture  an 
answer  to  any  of  these  questions  except  perhaps 
the  last.  As  to  that,  I  appeal  to  our  conscious- 
ness, to  our  innate  conviction  that  there  does 
exist  something,  some  virtue,  some  sentiment, 
however  undefinable  in  terms,  holding  men  to- 
gether in  society  despite  their  natural  selfishness, 
and  without  which  they  would  fall  apart.  It  is 
this  virtue,  this  ligament  of  society,  that  we  call 
justice.  We  feel  that  the  word  is  not  a  mere 
word,  but  that  it  connotes  a  vital  reality  in  human 
relationship.  If  this  reahty  be  ignored,  men 
cannot  be  held  together  in  any  society. 

If  j*ustice_be  the  greatest  good,  as  so  generally 
asserted,  then  its  negative,  or  injustice,  must  be 
the  greatest  evil.  Hence  error  in  men's  opinions 
of  what  is  justice  will  work  that  greatest  evil. 
Society  as  a  whole  is  Hable  to  error  in  respect  to 
justice;  has  often  been  mistaken  in  the  past  and 
may  be  mistaken  today.  The  individuals  com- 
posing society  are  seldom,  if  ever,  wholly  disin- 
terested and  dispassionate  in  their  judgments. 


CONCERNING  JUSTICE 

Each  individual  is  prone  to  believe  that  what  is 
apparently  good  for  himself  or  his  group  or  class, 
is  in  accord  with  justice.  Himself  persuaded 
that  he  is  batthng  for  justice,  he  does  not  see  that 
he  may  be  battling  only  for  some  advantage  over 
others,  for  some  individual  relief  from  common 
burdens,  for  some  privilege  not  to  be  accorded  to 
others;  does  not  see  that  what  he  is  battling  for 
may  cause  injustice  to  others.  Through  igno- 
rance of  the  real  nature  of  justice,  the  grant  to 
one  of  his  plea  for  what  he  calls  justice  may  work 
grievous  injustice  to  others.  So  when  altruists, 
warm  with  sympathy,  obtain  the  enactment  of 
laws  intended  for  the  betterment  of  the  less  for- 
tunate, they  may  at  times  do  injustice  to  others 
and  even  to  those  they  hoped  to  benefit.  His- 
tory records  many  instances  where  laws  intended 
to  insure  justice  had  the  contrary  eflfect.  Many 
a  statute  designed  to  prevent  oppression  has 
itself  proved  oppressive  in  operation.  Many  a 
theory  of  justice  has  been  found  to  work  injus- 
tice.    A   conspicuous   and   familiar   instance   is 


THE  PROBLEM  STATED 

found  in  the  history  of  the  French  Revolution. 
The  Jacobins  beheved  that  their  theories  if  given 
effect  would  usher  in  the  reign  of  justice  in  France. 
They  obtained  power  and  exploited  their  theories 
only  to  bring  in  the  Reign  of  Terror,  that  reign 
of  terrible  injustice. 

As  mistakes  and  grievous  mistakes  have  been 
made  in  the  past  as  to  what  is  justice,  so  they 
will  be  made  now  and  in  the  future,  and  can  be 
lessened  only  by  greater  wisdom  and  forethought, 
by  greater  effort  to  consider  justice  apart  by  itself, 
with  philosophical  detachment,  with  minds  un- 
clouded by  pity,  sympathy,  charity,  and  other 
like  virtues,  on  the  one  hand,  or  by  envy,  hate, 
prejudice,  and  like  evil  sentiments,  on  the  other. 
True,  men  are  more  enhghtened  now  and  educa- 
tion is  more  general,  but  society  is  more  complex, 
with  more  diverse  and  conflicting  interests,  than 
formerly.  The  social  mechanism  is  now  so  intri- 
cate that  even  a  sUght  disturbance  in  one  part 
may  disarrange  the  whole.  Injustice  to  one  may 
injure  the  many.  Hence  the  duty  of  ascertaining 
13 


CONCERNING  JUSTICE 

as  completely  as  possible  the  real  nature  of  jus- 
tice is  as  imperative  today  as  ever.  As  declared 
by  Ulpian,  this  duty  is  especially  incumbent  upon 
those  who  have  to  do  with  the  framing  or  adminis- 
tration of  the  laws,  since  justice  can  be  enforced 
only  by  law. 

In  any  inquiry  into  the  nature  of  justice  we 
get  little  help  from  the  wisdom  of  the  ancients. 
They  wrestled  with  the  question  but  seem  to 
have  been  as  puzzled  as  we  of  today.  Indeed, 
Plato  represents  the  sage  Socrates  as  frankly 
confessing  his  inabihty  to  answer  satisfactorily 
the  persistent  question  "What  is  justice?"  The 
question  comes  up  for  discussion  by  Socrates  and 
some  friends  at  the  home  of  Cephalus  at  the 
Piraeus.  Socrates  criticizes  and  punctures  the 
definitions  advanced  by  the  others  until  Thrasy- 
machus,  apparently  with  some  heat,  challenges 
Socrates  to  give  an  answer  of  his  own  to  the  ques- 
tion "what  is  justice?"  and  not  to  content  him- 
self, nor  to  consume  time,  with  merely  refuting 
others.  After  some  fuilher  discussion  of  various 
14 


THE  PROBLEM  STATED 
aspects  of  the  question,  Socrates  finally  says,  "I 
have  gone  from  one  subject  to  another  without 
having  discovered  what  I  sought  at  first,  the 
nature  of  justice.  I  left  the  inquiry  and  turned 
away  to  consider  whether  justice  is  virtue  and 
wisdom,  or  evil  and  folly,  and  when  there  arose 
a  further  question  about  the  comparative  advan- 
tages of  justice  and  injustice  I  could  not  refrain 
from  passing  on  to  that.  The  result  of  the  whole 
discussion  has  been  that  I  know  nothing  at  all. 
I  know  not  what  justice  is  and  therefore  am  not 
likely  to  know  whether  or  not  it  is  a  virtue,  nor 
can  I  say  whether  the  just  man  is  happy  or  un- 
happy." Granting  that  the  confession  may 
have  been  intended  ironically,  the  further  dis- 
cussion did  not  result  in  any  practical  solution, 
even  if  in  one  possible  in  Plato's  ideal,  but  im- 
possible, state.  Indeed,  the  inquiry  is  not  yet 
closed  and  will  not  be  until  the  millennium. 

Still,  upon  a  question  so  old,  so  important,  so 
persistent,  so  ingrained  in  human  society,  and 
even  now  receiving  sucb"  diverse  and  conflicting 
15 


CONCERNING  JUSTICE 
answers,  a  brief  consideration  of  the  earlier  beliefs 
and  theories  may  not  be  useless.  As  said  by 
Bishop  Stubbs,  the  historian,  "The  roots  of  the 
present  lie  deep  in  the  past  and  nothing  in  the 
past  is  dead  to  him  who  would  learn  how 
the  present  came  to  be  what  it  is."  The  roots 
should  be  examined  by  him  who  would  under- 
stand the  tree. 

In  Homer  we  get  a  glimpse  of  a  theory  of  his 
time,  to  wit,  that  each  separate  decision  given 
by  the  magistrate  in  any  Utigated  controversy 
was  furnished  to  him  by  Zeus  specially  for  that 
case.  The  Greek  word  for  such  a  decision  was 
themis,  and  it  was  supposed  that  somewhere  in 
the  Pantheon  was  a  corresponding  deity  whose 
special  function  was  to  furnish  the  appropriate 
themis  for  each  case.  This  deity  was  shadowily 
personified  as  the  goddess  Themis,  the  daughter 
of  heaven  and  earth,  the  companion  and  counselor 
of  Zeus.  It  was  she  who  summoned  gods  and 
men  to  council  and  presided  unseen  over  their 

deliberations.    Hence  she  came  to  be  regarded 
i6 


THE  PROBLEM  STATED 
as  also  the  spirit   of  order  without  which  the 
Greek  philosophers,  notably   Plato,    held   there 
could  be  no  justice. 

This  theory  that  justice  and  even  the  laws  were 
but  the  will  of  deity,  revealed  in  various  ways, 
was  long  generally  accepted.  In  Rome,  in  the 
time  of  the  kings,  the  king  was  the  Pontif  ex  Maxi- 
mus,  and  as  such,  with  the  help  of  the  College  of 
Priests,  declared  the  laws  and  decided  lawsuits. 
For  some  time  also  under  the  Repubhc,  when  a 
vote  was  to  be  taken  in  the  Comitia  upon  a  pro- 
posed law,  the  question  was  thus  put:  "Is  this 
your  pleasure,  O  Quirites,  and  do  you  hold  it  to 
be  the  will  of  the  gods?"  Under  the  Empire, 
despite  the  reasoning  of  many  philosophers  and 
lawyers  that  the  Emperor  derived  from  the 
people  his  power  to  make  laws  and  declare  the 
law  in  any  given  case,  he  assumed  and  was  as- 
sumed to  have  derived  the  power  and  inspiration 
solely  from  the  gods. 

The  early  Christian  Church  also  preached  the 
doctrine  that  the  ruling  power  in  the  state,  how- 
17 


CONCERNING  JUSTICE 
ever  established,  was  ordained  of  God  and  as 
such  was  entitled  to  the  obedience  of  the  pious. 
This  belief  that  justice  and  judgment  were  simply 
the  will  of  God,  to  be  ascertained,  not  by  reason 
but  by  other  means,  was  so  general  and  deep 
that  such  crude  devices  as  trials  by  ordeal  and 
battle  were  often  resorted  to  for  determining 
guilt  or  innocence  and  other  questions  of  fact. 
Indeed,  resort  to  such  expedients  for  determining 
questions  of  law,  as  well  as  questions  of  fact,  was 
not  unknown.    In  the  tenth  century  under  the 
Saxon  King  Otto  a  question  arose  whether  upon 
the  death  of  their  grandfather  his  grandchildren 
by  a  prior  deceased  son  should  share  in  the  inherit- 
ance along  with  their  surviving  uncles.    The  king 
ordered  a  trial  by  battle,  which  being  had,  the 
champions  for  the  grandchildren  were  the  victors. 
It  was  therefore  held  to  be  the  divine  will  that 
grandchildren  by  a  prior  deceased  child  should 
inherit   direct  from   their  grandfather.     I  may 
here  remind  you  that  trial  by  battle  was  not 
formally  abolished  in  England  until  well  into  the 


THE  PROBLEM  STATED 
igth  century.    And  there  is  even  now  professed 
a  belief  that  the  will  of  God  can  be  ascertained 
by  counting  ballots.     "Vox  PopuH  Vox  Dei"  is 
still  a  shibboleth. 

But  the  doctrine  that  justice  is  heaven  born, 
superior  to  and  controlhng  the  opinions  and  wills 
of  men,  did  not  escape  challenge  even  in  ancient 
times.  Those  sects  of  philosophers  known  as 
Epicureans  and  Sophists,  consistently  with  their 
theory  of  the  nature  of  virtue  in  general,  main- 
tained that  justice  was  merely  a  name  for  such 
conventions  among  men  as  they  should  adjudge 
best  for  their  own  utility  and  happiness.  The 
most  vigorous  champion  of  this  latter  theory 
appears  to  have  been  one  Cameades,  a  Greek 
philosopher  of  the  second  century  B.C.,  said  to 
have  been  the  founder  of  the  third  Academy  and 
expounder  of  the  philosophy  of  probabihties  and 
to  have  possessed  the  acutest  mind  of  antiquity. 
In  a  course  of  lectures  at  Rome  he  stated  the 
arguments  for  the  orthodox  view  of  justice  and 
then  boldly  assumed  to  answer  them  and  demon- 
19 


CONCERNING  JUSTICE 
strate  that  justice  was  not  a  virtue  at  all  as  virtue 
was  defined  by  the  philosophers,  but  was  merely 
a  convention;  was  what  men  should  agree  to  be 
a  sound  basis  for  the  maintenance  of  civil  society, 
and  hence  that  it  varied  with  times,  places,  cir- 
cumstances, and  even  opinions.  This  argument 
evidently  had  much  effect  upon  public  opinion, 
for  Cato  urged  in  the  Senate  that  Carneades  be 
banished  because  dangerous  to  the  state. 

So  great  was  the  influence  of  Carneades  that 
a  century  later  Cicero,  a  disciple  of  the  Stoic 
school  of  philosophy,  thought  it  necessary  to 
refute  him  specifically  as  the  chief  heretic,  and  to 
uphold  the  orthodox  theory  against  his  argu- 
ments. Cicero  denounced  with  eloquent  warmth 
the  doctrine  that  utiUty  was  the  foundation  of 
justice.  He  declared  that,  not  utility,  but 
nature,  was  the  source  of  justice,  that  justice  was 
a  principle  of  nature,  the  ultimate  principle 
behind  all  law.  To  abridge  the  familiar  quota- 
tion from  his  "De  RepubUca,"  "There  is  a  law 
which  is  the  same  as  true  reason,  accordant  with 
20 


THE  PROBLEM  STATED 

nature,  a  law  which  is  constant  and  eternal, 
which  calls  and  commands  to  duty,  which  warns 
and  terrifies  men  from  the  practice  of  deceit. 
This  law  is  not  one  thing  at  Rome,  another  at 
Athens,  but  is  eternal  and  immutable,  the  expres- 
sion and  command  of  Deity."  In  his  treatise 
"De  Legibus"  he  declared  that  men  are  born  to 
justice;  that  right  is  established  not  by  opinion 
but  by  nature;  that  all  civil  law  is  but  the  ex- 
pression or  application  of  this  eternal  law  of 
nature;  that  the  people  or  the  prince  may  make 
laws  but  these  have  not  the  true  character  of 
law  unless  they  be  derived  from  the  ultimate 
law;  that  the  source  and  foundation  of  right 
law  must  be  looked  for  in  that  supreme  law  which 
came  into  being  ages  before  any  state  was  formed. 
This  theory  of  the  Stoics  so  eloquently  urged 
by  Cicero  was  practically  the  jus  naturde  of 
the  Roman  jurists  of  classical  times,  though  more 
moderately  expressed  by  them.  It  does  not 
seem  to  have  been  wholly  academic,  but  to  have 
been  actually  appKed  at  times.    In  his  history 


CONCERNING  JUSTICE 
of  Rome,  Mommsen  relates  that  even  during 
the  nearly  absolute  sway  of  Sulla,  after  the  fall 
of  Marius,  the  Cornelian  Laws  enacted  to  de- 
prive various  Italian  communities  of  their  Roman 
franchise  were  ignored  in  judicial  proceedings 
as  null  and  void;  also  that,  contrary  to  Sulla's 
decree,  the  jurists  held  that  the  franchise  of 
citizenship  was  not  forfeited  by  capture  and 
sale  into  slavery  during  the  civil  war  with  Marius. 
Later,  when  the  church  became  a  power  in  the 
state  there  are  instances  where  laws  adjudged 
to  be  contrary  to  the  laws  of  God  were  refused 
effect.  In  England  as  late  as  the  middle  of  the 
17th  century  Chief  Justice  Hobart,  a  judge  of 
high  repute,  asserted  that  "even  an  act  of  Par- 
liament made  against  natural  equity,  as  to  make 
a  man  judge  in  his  owti  case,  is  void  in  itself  for 
the  laws  of  nature  are  immutable  and  they  are 
the  laws  of  laws."  In  the  i8th  century  Black- 
stone  assented  to  the  doctrine  of  a  jtis  naturale 
and  wrote  of  it:  "This  law  of  nature  being 
coeval  with  mankind  and  dictated  by  God  him- 


THE  PROBLEM  STATED 

self  is  of  course  superior  in  obligation  to  any 
other.  .  .  .  No  human  laws  are  of  any  validity 
if  contrary  to  this,  and  such  of  them  as  are  vahd 
derive  all  their  force  and  all  their  authority, 
mediately  or  immediately,  from  this  original." 
True,  Blackstone  combated  the  doctrine  that 
duly  enacted  statutes  were  to  be  held  void  if  the 
judges  thought  them  contrary  to  reason,  but  he 
admitted  that  that  extreme  doctrine  was  more 
generally  held.  In  this  country  the  doctrine  of 
a  higher  law  than  the  Constitution  even,  and  to 
be  obeyed  rather  than  the  Constitution  and  laws 
enacted  in  accordance  therewith,  has  had  and 
even  now  has  earnest  advocates. 

But  the  contrary  doctrine  of  Carneades  and 
the  Sophists  would  not  down.  After  Cicero  and 
the  civilians,  after  Hobart  and  Blackstone,  came 
our  modern  utilitarians,  or  sophists,  Bentham, 
Mill,  Austin,  and  others,  who  have  vigorously 
maintained  with  weighty  arguments  the  utili- 
tarian theory  of  justice;  and  that  theory  is  now 
generally  accepted  by  lawyers  and  statesmen  as 
23 


CONCERNING  JUSTICE 

at  least  the  most  workable  theory  in  human  af- 
fairs. There  still  exists,  however,  in  the  minds 
of  many  the  belief  that  above  and  behind  all  the 
turmoil  and  strife  of  politics,  all  the  flux  and 
reflux  of  social  movements  and  pubHc  sentiment, 
the  confusion  of  enactments,  amendments, 
and  repeals  of  statutes,  the  swaying  of  judicial 
opinion,  there  is  some  law  of  nature  or  in  nature, 
some  criterion,  which  if  ascertained  and  obeyed 
would  be  perfect  justice. 

This  question  of  the  origin,  the  foundation  of 
justice,  whether  it  be  of  God  or  of  men,  seems 
to  have  been  much  more  debated  than  the  ques- 
tion what  is  the  nature  of  justice  whatever  its 
origin  or  foundation.  Yet  some  attempts,  other 
than  those  attributed  to  Socrates,  have  been 
made  of  old  to  give  a  definition  of  justice.  The 
earliest  description  I  have  found  is  that  of  the 
early  Pythagoreans,  who,  in  accordance  with  their 
practise  of  symbolizing  the  virtues  by  geometri- 
cal  figures,   designated   justice  by   the   square, 

and  the  just  man  by  the  cube.    Plato  seems  to 

24 


THE  PROBLEM   STATED 

have  had  a  theory  of  justice  when  he  wrote  in 
the"Gorgias/'  "Nature  herself  intimates  that  it 
is  just  for  the  better  to  have  more  than  the 
worse,  the  stronger  than  the  weaker,  and  in  many 
ways  she  shows  that  among  men  as  well  as  among 
animals  justice  consists  in  the  superior  ruhng 
over  and  having  more  than  the  inferior."  In 
these  days  our  first  impulse  may  be  to  denounce 
Plato's  statement  as  altogether  wrong  if  not 
worse.  We  should  remember,  however,  that 
Plato  was  not  considering  any  altruistic  virtue 
such  as  kindness,  sympathy,  benevolence,  gen- 
erosity and  the  like,  but  only  what  nature  indi- 
cates to  be  the  essential  condition  of  successful 
association.  Thus  interpreted,  are  we  prepared 
to  confute  the  statement?  Do  we  know  of  any 
state  of  society  in  human  or  animal  life  at  any 
time,  past  or  present,  of  which  the  contrary  of 
Plato's  statement  is  true? 

But  passing  over  all  other  attempts  of  the 
ancients  to  define  justice,  none  of  which  seems  to 
have  been  much  regarded  by  contemporary  opin- 
25 


CONCERNING  JUSTICE 
ion,  I  will  only  cite  the  most  famous,  that  by 
Ulpian,  the  renowned  jurist  of  the  best  period  of 
Roman  jurisprudence,  whose  writings  were  most 
drawn  upon  by  the  learned  compilers  of  the 
Institutes  and  Digest  of  Justinian;  viz.,  "  Justitia 
est  constans  et  perpetua  voluntas  jus  suum 
cuique  tribuendi,"  or  "Justice  is  the  constant 
and  perpetual  will  to  render  to  every  one  his 
right."  This  definition  was  adopted  by  the 
compilers  as  correct  and  made  the  introduction 
to  the  Institutes.  It  thus  received  the  imperial 
sanction  and  was  quoted  wherever  the  law  of 
Rome  prevailed,  down  through  medieval  times 
and  later,  almost  as  if  it  were  an  inspired  or  at 
least  authoritative  definition  not  to  be  questioned. 
But  notwithstanding  the  acclaim  with  which 
this  definition  was  hailed,  I  question  that  it  was 
any  improvement  on  that  of  Aristotle,  who  tersely 
i  defined  justice  as  "that  virtue  of  the  soul  which 
is  distributive  according  to  desert."  Indeed,  I 
think  Aristotle  was  nearer  the  mark. 
Upon  the  revival  of  the  study  of  law  and 
26 


THE  PROBLEM  STATED 

jurisprudence  in  the  nth  and  12th  centuries 
several  of  the  more  famous  jurists  of  that  time, 
Azo,  Irnerius,  Placentinus  and  others,  essayed 
definitions  of  justice,  but  they  do  not  seem  to 
have  improved  upon  Ulpian.  Their  definitions 
were  vitiated  by  theological  assumptions  and 
none  of  them  has  become  a  text  for  commenta- 
tors or  students.  Neither  in  modem  times  has 
any  definition  of  justice  been  suggested  which 
has  received  such  universal  assent  as  did  that  of 
Ulpian  in  his  time  and  for  centuries  afterward. 
We  may  therefore  return  to  Ulpian 's  definition 
as  our  point  of  departure,  since  his  definition  is 
substantially  that  suggested  earlier  by  Aristotle, 
and  observations  on  the  later  will  also  apply  in 
many  respects  to  the  earlier. 
-'  Ulpian's  definition  is  elegant  in  style,  but  it 
does  not  carry  us  very  far  in  our  inquiry.  We 
are  told  indeed  that  justice  is  a  state  or  disposi- 
tion of  the  mind,  the  disposition  to  render  to 
everyone  his  right  or,  as  put  by  Aristotle,  is  the 
disposition  to  distribute  according  to  desert.  It 
27 


CONCERNING  JUSTICE 

was  this  statement  that  captured  the  medieval  jur- 
ists and  which  they  made  their  text,  but  it  is  now 
regarded  as  incomplete  and  even  inaccurate. 
One  may  have  the  disposition,  the  desire,  the  will, 
to  render  to  every  one  his  right,  but  unless  he 
can  know  what  is  his  fellow's  right  he  may 
unwittingly  fail  to  accord  it  to  him  and  thus 
unwittingly  do  injustice.  It  evidently  is  not 
enough  to  have  the  disposition  or  will;  hence 
the  definition  is  incomplete,  and  any  definition 
is  incomplete  which  does  not  furnish  a  criterion 
for  determining  what  is  the  given  man's  right. 
But  the  definition  as  far  as  it  does  go  is  not 
strictly  accurate.  The  man  of  malevolent  dispo- 
sition who  would  wrong  his  fellow  if  he  dared, 
may  yet,  to  avoid  unpleasant  consequences  to 
himself,  render  fully  to  every  other  man  his 
right.  It  would  seem,  therefore,  that  justice  is 
an  attribute  or  quality  of  conduct  rather  than  a 
disposition  or  state  of  mind,  and  of  conduct 
toward  others  rather  than  of  conduct  toward 
one's  self.  It  is  only  of  the  conduct  of  men  in 
28 


THE  PROBLEM  STATED 

their  relations  to  other  men  that  we  can  predicate 
justice  or  injustice.  One's  conduct  may  result 
in  good  or  evil  to  himself  and  so  be  wise  or  un- 
wise, but  assuming,  what  probably  is  never  the 
fact,  that  it  affects  only  himself,  in  no  way  affects 
any  other,  his  conduct  is  neither  just  nor  unjust. 
Robinson  Crusoe,  until  the  arrival  of  the  man 
Friday,  had  no  occasion  to  consider  our  problem. 
But,  admitting  that  each  man's  conduct, 
whether  active  or  passive,  does  affect  some  other 
person,  what  is  the  criterion  by  which  to  deter- 
mine the  justice  or  injustice  of  that  conduct? 
It  is  not  enough  to  say  that  if  the  conduct  in  any 
degree  impedes  the  other  person  in  the  enjoy- 
ment of  any  of  his  rights  it  is  unjust,  otherwise 
not;  for  then  the  question  comes  to  the  front, 
what  is  the  right  of  that  other  in  the  given  case? 
Indeed,  this  latter  question  is  the  crux  of  the 
problem  of  justice.  The  derivation  of  the  word 
"justice"  also  shows  this.  The  Latin  justitia  or 
justiiium  according  to  some  scholars  is  com- 
pounded oi  jus,  right,  and  sisto  or  steti,  to  place, 
29 


CONCERNING  JUSTICE 

or  to  cause  to  stand,  and  hence  the  whole  word 
may  be  held  to  signify  the  maintenance  of  jus 
or  right.  With  the  question  of  jus  or  right  cor- 
rectly answered,  the  problem  of  justice  is  prac- 
tically solved.  The  right  of  the  one  being 
known,  the  effect  of  any  particular  conduct  of 
another  on  that  right,  and  consequently  its 
justice  or  injustice,  is  determinable  with  com- 
parative ease.  Hence  to  make  progress  in  our 
inquiry  we  must  consider  the  problem  of  rights, 
for  we  almost  instinctively  accept  as  correct  so 
much  of  Ulpian's  definition  as  implies  that  justice 
is  to  be  predicated  of  the  act  of  rendering  to 
everyone  his  right.  We  instinctively  feel  that  if 
we  render  to  another  his  full  right  we  do  him  full 
justice,  and  that  if  we  ourselves  are  deprived  of 
any  right  we  suffer  injustice.  What  is  his  or  our 
right  is  therefore  the  real  question.  This  will  be 
our  next  subject  for  consideration. 


30 


CHAPTER   II 

TEE  PROBLEM  OF  RIGHTS.    DIFFERENT 

THEORIES  AS   TO  THE  SOURCE 

OF  RIGHTS 

THE  problem  of  Rights  is  also  centuries  old. 
There  have  been  in  later  years  glowing 
tributes  to  human  rights  even  more  than  to  jus- 
tice, though  the  sentiment  of  rights  is  egoistic, 
while  that  of  justice  is  in  some  measure  altruistic. 
There  have  also  been  diverse  opinions  in  the 
past,  as  now,  as  to  the  source,  foundation,  and 
nature  of  what  are  called  Rights,  as  there  were 
and  are  of  justice.  A  brief  review  of  these  opin- 
ions and  of  the  changes  in  them  may  present  the 
problem  more  vividly. 

In  patriarchal  times  there  could  be  no  political 
questions  about  rights.  The  head  of  the  family 
was  supreme  and  sole  ruler  and  judge.  Even  in 
Rome  under  an  organized  civil  government  the 
pater  familias  was  long  left  the  power  of  life  and 
31 


CONCERNING  JUSTICE 

death  over  the  members  of  his  family.  When 
families  and  tribes  were  combined  in  states, 
government  was  long  conducted  on  the  theory  that 
as  the  individual  had  belonged  to  the  family  or 
tribe  into  which  he  was  born  or  adopted,  so  he 
now  belonged  to  the  state,  to  be  directed  and 
disposed  of  as  the  state  might  order.  What  he 
might  enjoy  of  life,  liberty,  or  property  was  the 
gift  of  the  state,  subject  to  revocation  at  will. 
Plato  reflects  this  theory  in  making  Hippias  de- 
clare that  the  measure  of  man's  right  is  what  the 
state  commands.  The  total  abolition  of  the 
liberty  of  innocent  persons  by  holding  them  in 
slavery  was  not  deemed  any  infringement  of  any 
right  of  theirs.  This  theory  was  acted  upon  in 
democratic  as  well  as  in  monarchical  states. 
Slavery  was  as  lawful  in  Athens,  Sparta,  and 
republican  Rome  as  in  Persia  or  Egypt.  True, 
there  were  rebellions  and  revolutions  at  times, 
but,  though  sometimes  provoked  by  oppression, 
they  were  usually  to  acquire  the  power  of  govern- 
ment and  not  in  defense  of  individual  rights. 
32 


THE  PROBLEM  OF  RIGHTS 

The  Plebeians  revolted  to  obtain  a  greater  share 
in  the  governing  power.  The  civil  wars  of 
Marius  and  Sulla  were  not  waged  for  liberty  but 
for  power.  In  Sicily,  where  the  slaves  under 
Eunus  had  for  a  time  wrested  the  governing 
power  from  their  masters,  they  did  not  hesitate  to 
enslave  in  turn. 

The  doctrine  that  the  individual  man  has 
some  rights  by  nature  which  the  state  ought  not 
to  disregard  had  no  place  in  ancient  nor  medieval 
governments.  The  English  Magna  Charta  pur- 
ports to  be  a  grant  from  the  king  and,  though 
framed  by  the  barons  and  forced  upon  the  king, 
it  contains  no  assertion  of  rights  by  nature. 
The  rights  claimed  were  claimed  as  accustomed 
rights  previously  conferred  and  enjoyed,  such  as 
the  laws  and  customs  of  the  time  of  Henry  I. 
Apart  from  provisions  as  to  improved  methods  of 
administration,  the  language  of  the  Charter 
implies  restoration  rather  than  revolution. 

So  in  the  Petition  of  Right  in  the  reign  of 
Charles  I,  no  appeal  was  made  to  natural  rights, 
33 


CONCERNING  JUSTICE 

but  the  demand  was  for  accustomed  privileges, 
for  the  observance  by  the  king  of  the  old  laws 
and  customs  of  the  realm,  especially  those  in 
force  under  Edward  I  and  Edward  III.  In  the 
Petition,  the  Charter  of  King  John  is  cited,  not 
as  a  schedule  of  the  rights  of  man  in  the  abstract, 
but  as  "The  Great  Charter  of  the  Liberties  of 
England,"  implying  that  the  hberties  therein 
named  were  not  the  natural  heritage  of  men  in 
general  but  the  pecuHar  heritage  of  Englishmen, 
under  EngUsh  law.  The  prayer  of  the  Petition 
is  simply  that  the  king  shall  accord  the  people  of 
England  "their  rights  and  liberties  according  to 
the  laws  and  statutes  of  the  realm." 

So  in  the  Bill  of  Rights  framed  by  Parliament 
and  approved  by  WilHam  and  Mary  upon  their 
accession  to  the  throne,  it  was  not  asserted  that 
the  acts  of  James  II  complained  of  were  contrary 
to  any  natural  right  of  the  subject,  but  that  they 
"were  utterly  and  directly  contrary  to  the  known 
laws  and  statutes  and  freedom  of  this  realm." 
The  purpose  of  the  Bill  of  Rights  was  declared 
34 


THE  PROBLEM  OF  RIGHTS 

by  the  Parliament  in  behalf  of  the  people  to  be 
"for  the  vindicating  and  asserting  their  ancient 
rights  and  liberties."  In  the  earher  remon- 
strances of  the  legislatures  of  the  EngHsh  colonies 
in  America  against  various  acts  of  the  king  and 
Parhament,  only  the  accustomed  rights  of  EngHsh- 
men  were  claimed  to  be  \iolated.  The  colonists, 
at  first,  claimed  as  against  king  and  Parha- 
ment no  rights  not  accorded  to  Enghshmen  in 
England. 

But  though  the  notion  that  man  has  rights 
by  nature,  not  granted  by  the  state  and  which 
the  state  should  respect  as  such,  did  not  for  cen- 
turies find  expression  in  state  papers  or  state 
action,  it  was  by  no  means  non-existent.  It 
was  early  in  the  minds  of  many  and  found  some 
expression  in  the  writings  of  jurists  and  philoso- 
phers. In  Rome  it  was  a  corollary  of  the  doc- 
trine of  the  existence  of  a  jus  naturale.  The 
statement  of  that  doctrine  by  Ulpian  incor- 
porated in  the  Digest  implies  a  doctrine  that 
man  does  have  some  rights  anterior  to  and  in- 
35 


CONCERNING  JUSTICE 
dependent  of  the  state.     So  far,  however,  as  the 
statement  was  susceptible  of  that  construction  it 
was  not  generally  acted  upon  and  remained  prac- 
tically a  dead  letter.    The  doctrine  itself  sur\dved, 
however,  engaging  the  attention  and  receiving  the 
support  of  various  writers.    It  gradually  gained 
ground  among  students  of  pohtics  and  spread  rap- 
idly after  the  Protestant  Reformation,  so-called, 
because  of  the  impetus  given  by  that  event  to 
the  exercise  of  private  judgment.     As  early  as  the 
17th  century,  though  finding  Uttle  or  no  expres- 
sion in  the  Petition  of  Right  or  Bill  of  Rights, 
the  doctrine  that  individual  rights  were  derived 
from  nature  rather  than  from  the  state  was  gen- 
erally entertained  by   the  Puritans  and  other 
dissenters   from    the    EstabUshed    Church,   and 
was  invoked  by  them  to  some  extent  as  justify- 
ing the  revolution  of  1640.    The  doctrine  also 
passed  over  to  the  Puritan  Colonies  in  America 
and  early  found  some  expression  there.    In  the 
Massachusetts  "Body  of  Liberties"  of  1641  there 
\     is  a  suggestion  that  the  liberties,  etc.,  therein 

36 


THE  PROBLEM  OF  RIGHTS 

recited,  were  those  demanded  by  "humanity, 
civility  and  Christianity"  rather  than  "accus- 
tomed" liberties.  It  was  further  asserted  that 
these  liberties  were  to  be  enjoyed  by  the  people 
of  the  Colony  and  their  posterity  forever. 

The  later  disputes  as  to  the  proper  limits  of 
the  power  of  the  British  King  and  Parliament 
over  the  American  Colonies  led  the  colonial  law- 
yers and  poUticians  to  a  study  of  the  theory  of 
natural    rights    advanced    by  various    political 
writers,  English  and  Continental.    It  has  been 
said,  I  think  with  truth,  that  the  writings  of  / 
Locke,    Voltaire,    Rousseau,    Montesquieu,    and  . 
even  of  Blackstone,  were  more  widely  read  and  ; 
studied  in  America  than  in  Europe.    The  bril-  " 
liant  writings  of  Tom  Paine  also  had  great  in- 
fluence.   The  result  was  that  the  doctrine  of 
natural  rights  came  to  be  generally  accepted  by 
the  people  of  the  Colonies  as  the  real  foundation 
of  their  claims  and  the  real  justification  for  their 
resistance  to  the  objectionable  acts  of  the  King 
and  Parliament.    In  1774  the  first  Continental 
37 


CONCERNING  JUSTICE 
Congress  in  its  Declaration  of  Rights  declared 
that  the  people  of  the  Colonies  had  those  rights 
by  "the  immutable  laws  of  nature"  as  well  as 
by  their  charters  and  the  principles  of  the  Eng- 
lish Constitution.  Two  years  later  in  the  Dec- 
laration of  Independence  the  representatives  of 
the  people  made  no  reference  to  their  charters 
nor  to  the  principles  of  the  EngUsh  Constitution 
as  the  foundation  of  their  claims,  but  based  them 
exclusively  on  the  theory  of  natural  rights.  They 
declared:  "We  hold  these  truths  to  be  self-evi- 
dent, that  all  men  are  created  equal;  that  they 
are  endowed  by  their  Creator  with  certain  un- 
aUenable  rights;  that  among  these  arc  life,  liberty 
and  the  pursuit  of  happiness." 

The  same  influences  undoubtedly  contributed 
to  bring  about  the  French  Revolution  of  1789, 
and  the  theory  of  natural  rights  again  found 
expression  in  the  French  state  papers  of  that 
period.  In  August  of  that  year,  in  the  early 
stages  of  the  Revolution,  the  following  "Decla- 
ration of  the  Rights  of  Man  and  Citizen"  was 
38 


THE  PROBLEM  OF  RIGHTS 
put  forth  by  the  National  Assembly  and  after- 
wards made  the  first  two  articles  of  the  Con- 
stitution of  1 791,  viz.,  "Art.  I,  Men  are  born 
and  remain  free  and  equal  in  rights.  Social 
distinctions  can  be  based  only  upon  public  util- 
ity. Art.  2.  The  aim  of  every  political  asso- 
ciation is  the  preservation  of  the  natural  and 
imprescriptible  rights  of  man.  These  rights  are 
liberty,  property,  security  and  resistance  to 
oppression." 

Thus  in  the  latter  part  of  the  i8th  century 
the  doctrine  that  man  has  some  individual 
rights  by  nature,  not  by  grant  or  prescription, 
and  not  ahenable,  obtained  official  recognition 
in  two  great  nations.  It  has  since  been  form- 
ally and  officially  iterated  in  the  Constitu- 
tions of  many  American  States  and  has  been 
proclaimed  and  invoked  as  an  impregnably  es- 
tabHshed  political  truth.  Nevertheless  the  doc- 
trine is  only  a  theory,  not  yet  demonstrated  nor 
undoubted.  It  has  been  assailed  and  in  the 
opinion  of  many  refuted,  by  Bentham,  Mill,  and 
39 


CONCERNING  JUSTICE 
other  utilitarian  writers,  the  successors  of  Epi- 
curus,  Cameades  and   the   Sophists.     Even  in 
France  and  America  it  is  now  repudiated  by 
many  and  declared  to  be  an  obstacle  to  social 
and   poHtical   improvement.     Still,    despite   the 
vigorous  arguments  against  the  doctrine,  there 
remains  the  innate  feeling  and  a  general  belief 
that  society  abridges  individual  rights  instead 
of  conferring  them.    In  support  of  this  notion 
may  be  cited  the  fact  that  the  statutes  of  any 
state  or  nation  are  almost  wholly  restrictive  or 
compulsory  in  character,  and  rarely,  if  ever,  per- 
missive.   From  the  Decalogue  down,   the  lan- 
guage of  the  law  has  been  compulsive,  "Thou 
shalt"  and  "Thou  shalt  not";    and  men  gener- 
ally act  upon  the  theory  that  what  society  does 
not  forbid  by  statute  or  custom  the  individual 
may  do. 

In  passing  now  from  the  region  of  theory,  of 

speculative  opinion,  to  what  seems  to  me  the 

region  of  facts,  of  actual  conditions,  of  actual 

traits  of  human  nature,  I  wish  it  to  be  under- 

40 


THE  PROBLEM  OF  RIGHTS 
stood  distinctly  that  in  what  I  may  say  about 
rights  I  am  considering  only  the  precepts  of 
justice,  and  that  I  differentiate  those  precepts 
from  the  precepts  of  religion,  charity,  philan- 
thropy, benevolence,  and  other  sunilar  virtues, 
and  even  those  of  what  is  loosely  called  human- 
ity. If  it  be  true  as  asserted  by  Addison  that 
justice  is  the  greatest  and  most  godlike  of  the 
virtues,    it     does    not     follow     that     the    just  ^ 

man,  to  be  just,  must  possess  all  or  any  of 
the  other  virtues.  One  can  be  just  without 
being  religious,  charitable,  or  philanthropic, 
and  even  without  earning  the  reputation  of 
being  humane. 

I  wish  further  to  premise  that  I  am  consider- 
ing our  subject  only  with  reference  to  those  who 
have  grown  to  the  age  of  self-maintenance  and      ■^' 
consequent  freedom.    I  do  not  take  into  account 
the  rights  of  children  under  that  age. 

With  these  premises  borne  in  mind,  I  would 
now  in  the  next  chapter  call  attention  to  some 
propositions  of  fact,  which  I  shall  assimie  to  be 
41 


CONCERNING  JUSTICE 

established  by  science  and  history  and  by  the 
reader's  own  experience  and  observation,  and 
which  I  think  bear  more  or  less  directly  on  our 
subject. 


42 


CHAPTER  III 

THE  PROBLEM  OF  RIGHTS  CONTINUED. 

THE  NEED  OF  LIBERTY  OF  ACTION 

FOR   THE  INDIVIDUAL 

MEN  are  endowed  by  nature  with  sundry 
powers,  faculties,  capacities,  physical 
and  mental.  These,  however,  are  not  at  all 
uniform,  but  are  diverse  in  kind  and  degree  in 
different  races  of  men  and  in  different  individuals 
of  the  same  race.  Nature  seems  to  work  through 
diversity  rather  than  through  uniformity,  in- 
deed through  inequaHty  rather  than  through 
equaUty.  Not  all  men  are  bom  poets,  nor  are 
all  poets  equally  good  poets.  Not  all  men  are 
by  nature  adapted  for  intellectual  pursuits,  and 
those  who  are  so  adapted  are  not  in  that  respect 
equally  favored  by  nature.  Even  in  the  field 
of  the  simplest  manual  labor  there  is  great  di- 
versity of  natural  capacity.  It  seems  to  be 
43 


CONCERNING  JUSTICE 

nature's  theory  that  mankind,  the  human  race 
as  a  whole,  \\dll  be  better  served  by  diversities, 
by  differences  in  kinds  and  degrees  of  powers, 
than  by  imiformity  and  equahty. 

Further,  normal  men  are  also  by  nature  en- 

/  dowed,  if  not  with  rights,  yet  with  sundry  in- 

!  stincts,  desires,  passions;    also  with  sundry  feel- 

:    ings,  emotions,  sentiments;    and  also  with  some 

degree  of  reason  and  power  of  choice.     Some  of 

these  may  not  be  apparent  in  infancy,  but  they 

appear  in  a  greater  or  less  degree  of  intensity  as 

the  individual  develops. 

Among  these  instincts  or  desires  is  the  desire 
to  live,  the  desire  to  serve  each  his  own  welfare 
and  that  of  his  offspring,  and  the  desire  to  decide 
for  himself  what  will  best  serve  that  welfare. 
As  a  corollary,  he  also  has  by  birth  the  desire 
,  for  freedom  to  exercise  any  and  all  of  his  talents 
I  and  powers  in  such  manner,  to  such  extent,  and 
in  pursuit  of  such  objects  as  he  prefers,  or  to  be 
idle  if  he  prefers  idleness.  Further,  he  has  the 
instinct  of  acquisitiveness,  the  desire  to  appro- 
44 


THE  PROBLEM  OF  RIGHTS  —  Continued 
priate  to  himself  and  retain  control  of  such  ma- 
terial objects  as  he  thinks  may  serve  his  welfare 
and  that  of  his  offspring,  and  especially  does  he 
have  a  natural  instinct  and  desire  to  possess  and 
control  exclusively  for  himself  whatever,  much 
or  little,  he  has  wrenched  from  nature  or  other- 
wise obtained  by  the  exercise  of  his  various 
powers.  This  instinct  is  also  observable  in  some 
animals.  A  dog  will  hide  a  bone  for  his  own  ex- 
clusive future  use.  Man  also  instinctively  claims 
for  his  own  the  natural  increase  of  what  he  has 
acquired,  the  young  of  his  beasts,  the  fruits  of 
his  orchard. 

This  desire  for  control  includes  the  desire  to 
store  up,  to  use,  to  consume,  to  transfer,  and 
even  to  destroy  at  will.  This  desire  is  seen  in 
young  children,  who  will  try  to  clutch  and  hold 
whatever  attracts  them,  and  who  will  hoard  or 
break  toys  or  throw  them  away  as  their  whims 
may  be.  As  they  get  older  the  desire  to  control 
grows  stronger,  for  they  destroy  less  and  pre- 
serve more  in  order  to  have  greater  measure  of 
45 


CONCERNING  JUSTICE 

control;  but  still  they  desire  freedom  to  consume 
or  destroy  at  their  own  will.  So  strong  is  this 
desire  of  control  that  men  wish  to  direct  what 
shall  be  done  with  their  property  after  their 
death. 

If  one  is  balked  or  hindered  in  the  gratification 
of  any  of  these  desires,  there  is  excited  in  him  a 
feeling  of  resentment  against  the  cause,  even  if 
it  be  only  some  force  of  nature.  There  is  a  note 
of  anger  in  the  cries  of  a  child  over  interference 
with  his  play,  the  deprivation  of  any  toy  or  other 
thing  he  may  have  or  desire.  That  the  wind  or 
the  rain  was  the  cause  does  not  sooth  him.  In 
the  mature  man  also,  anger  adds  some  force  to  the 
kick  he  gives  even  inanimate  objects  unex- 
pectedly impeding  him.  Who  of  us  has  ever 
fallen  over  a  chair  in  the  dark  without  mentally, 
at  least,  consigning  it  to  perdition?  The  old 
law  of  Deodand  was  an  expression  of  this  feeling 
of  resentment  against  inanimate  objects  even. 
By  that  law,  according  to  Blackstone,  whatever 
chattel  was  the  immediate  cause  of  the  death  of 
46 


THE  PROBLEM  OF  RIGHTS  —  Continued 

a  reasonable  creature  was  forfeited  to  the  crown, 
as  when  a  cart  ran  over  a  man.  By  the  laws  of 
Draco  whatever  caused  a  man's  death  by  falling 
upon  him  was  to  be  destroyed  or  cast  out  of  the 
community.  Thus  a  statue  having  fallen  upon 
a  man,  it  was  thrown  into  the  sea.  The  Mosaic 
law  savagely  declared:  "If  an  ox  gore  a  man 
that  he  die,  the  ox  shall  be  stoned  and  his  flesh 
shall  not  be  eaten." 

Is  not  this  instinctive  feeling  of  resentment 
at  interference  with  one's  person,  liberty,  or  prop- 
erty, the  rudiment  of  a  later  developed  idea,  or 
sentiment,  of  rights  possessed?  Resentment  is 
felt  only  when  one  is  deprived  of  something  he 
feels  he  is  entitled  to.  Granting  that  nature 
has  not  endowed  man  with  rights,  it  has  imbued 
him  with  a  beHef  that  he  has  rights,  and  also  with 
a  disposition  to  defend  them. 

Man  is  also  bom  into  a  material  world  of 

natural  forces,  and  hence  to  gratify  his  desire  to 

live  and  serve  his  own  welfare  and  that  of  his 

offspring,  he  must  adapt  himself  to  his  environ- 

47 


CONCERNING  JUSTICE 

ment,  fit  himself  to  withstand  heat  and  cold, 
provide  himself  with  food  and  shelter.  He  not 
only  desires  to,  but  he  must,  exercise  his  powers 
of  mind  and  body  and  hence  should  be  free  to 
exercise  them  to  that  extent  at  least.  Nature 
does  not  feed,  clothe  and  shelter  man.  It  only 
provides  the  raw  material  which  man  must  him- 
self find,  take,  and  convert  by  his  labor,  manual 
and  intellectual,  into  food,  clothing,  shelter,  and 
whatever  else  he  desires. 

But  man  is  also  bom  into  association  with 
other  men,  into  some  sort  of  social  organization, 
and  well  for  him  that  he  is.  It  is  not  society, 
however  ill  organized,  that  has  caused,  or  today 
causes,  poverty.  That  is  the  primitive  condi- 
tion of  the  human  race.  It  is  only  through  some 
social  organization  ensuring  to  man  freedom  for 
his  labor  and  security  for  his  savings  that  he  can 
escape  poverty.  If  each  individual  by  his  own 
unaided  efforts  had  to  find  the  raw  material, 
mold  it  to  serve  his  needs  and  desires,  and  also 
defend  it  from  attacks  by  others,  his  life  would 


THE  PROBLEM  OF  RIGHTS  —  Continued 

be  one  of  dire  poverty,  scarcely  above  that  of 
the  higher  animals. 

Further,  nature  has  so  formed  man  that  he  ; 
not  only  needs  but  desires  association  with  other/ 
men.  Children  instinctively  flock  together  for 
common  play,  and  this  social  instinct  continues 
through  life  and  extends  to  work  as  well  as  play. 
We  find  men  everywhere  in  the  civilized  world 
voluntarily  entering  into  associations  for  various 
purposes  thought  by  the  members  to  be  of 
service  to  themselves  or  others.  But  there  is 
over  and  surrounding  these  associations  that 
larger  association,  racial  or  territorial,  which  we 
call  society.  This  is  the  necessary  association 
into  which  man  is  born  and  in  which  he  must 
live  if  he  desires  other  than  mere  animal  hfe. 
This  society  must  be  maintained  if  the  race  of 
men,  as  men  and  not  as  mere  animals,  is 
to  continue.  Indeed,  society  itself  has  a 
sort  of  instinct  for  self-preservation.  It  is 
not  a  mere  aggregation  of  individual  units 
but  is  an  association  of  sentient  correlated 
49 


CONCERNING  JUSTICE 

beings  with  a  resultant  life  and  movement  of 
its   own. 

Association,  however,  does  not  extinguish  nor 
appreciably  lessen  the  natural  instincts,  desires, 
feelings,  sentiments,  etc.,  of  the  individual, 
though  they  may  be  made  less  active  by  con- 
tinued restraint.  Association  even  extends  the 
scope  of  man's  individual  desires  and  activities. 
He  now  desires  freedom  to  make  arrangements 
with  other  men  of  such  nature  and  for  such  pur- 
poses as  he  and  they  may  agree  upon.  If  he  is 
prevented  by  authority  from  making  such  ar- 
rangements he  feels  some  resentment,  feels  that 
his  right  is  infringed.  He  also  comes  to  desire 
that  those  who  have  entered  into  arrangements 
or  contracts  with  him  should  perform  their  part, 
and  he  instinctively  feels  resentment  at  their 
neglect  or  refusal  to  do  so.  He  feels  that  he 
has  a  right  to  the  performance  of  the 
contract. 

Another  desire  is  developed  or  given  play  by 
society,  —  the  desire  to  equal  one's  fellows  in 
5° 


THE  PROBLEM  OF  RIGHTS  —  Continued 
the  race  for  benefits,  and,  that  accompUshed,  to 
excel  them.    He  desires  to  win  in  every  game, 
to  be  the  victor  in  every  contest  of  physical  or 
mental  powers,  and  in  business  as  well  as  in 
sports.    If  he  is  held  back  he  feels  resentment 
against  the  power  assvmiing  to  restrain  him.    He 
;   thus  feels  he  has  a  right  to  equal  and  to  excel  if 
-   he   can.    Whether   competition    should   be   en- 
forced or  stimulated  by  society  is  a  question  in 
I  economics.    What  affects  the  question  of  rights 
I  and  hence  of  justice  is  whether  this  desire  to  excel 
\  should  be  impeded. 

In  this  association,  however,  each  individual 
man  finds  himself  in  close  contact  all  through 
life  with  other  men  having  like  instincts,  desires, 
feelings,  emotioiis,  etc.,  as  his  own;  and  who  also 
feel  like  resentments  and  have  like  notions  of 
rights  possessed.  If  each  is  left  by  society  free 
to  gratify  these  desires  or  to  enforce  his  claims 
of  rights  in  his  own  way  unmindful  how  his 
action  may  affect  others;  if  they  be  left  free  to 
"take  who  have  the  power"  and  only  they  may 
51 


CONCERNING  JUSTICE 

"keep  who  can,"  society  could  not  exist  and 
civilization,  if  not  the  race,  would  perish. 

Society,  therefore,  must  frame  and  enforce 
rules  for  the  regulation  and  control  of  the  conduct 
of  its  individual  members,  must  even  restrain 
them  to  some  extent  from  the  gratification  of 
some  of  their  desires.  On  the  other  hand,  these 
instincts,  desires,  etc.,  must  still  be  reckoned 
with.  They  cannot  be  wholly  suppressed  nor 
even  very  much  reduced  or  impeded  if  society 
is  to  progress  or  even  exist.  There  must  be 
left  to  the  individual  some  degree  of  liberty  of 
choice  and  action.  An  eminent  American  jurist, 
James  C.  Carter,  vividly  stated  this,  though 
perhaps  in  the  extreme,  when  he  wrote  that  the 
sole  function  of  law  and  legislation  is  to  secure  to 
each  individual  the  utmost  liberty  which  he  can 
enjoy  consistently  with  the  preservation  of  the 
like  liberty  to  all  others.  "Liberty  (he  wrote), 
the  first  of  blessings,  the  aspiration  of  every 
human  soul,  is  the  supreme  object.  Every 
abridgment  of  it  demands  an  excuse,  and  the 
52 


THE  PROBLEM  OF  RIGHTS  —  Continued 

only  good  excuse  is  the  necessity  of  preserving 
it."  (Carter's  "Law.  Its  origin  and  growth," 
page  337.) 

There  must  also  be  left  to  the  individual  some 
personal  motives  for  labor  and  thrift,  for,  after 
all,  it  is  the  toil  of  individuals  that  supports 
society  and  its  members.  It  is  the  surplus 
products,  not  consumed,  but  stored  up  by  the 
economy  of  individuals  that  constitutes  the  energy 
of  society.  However  it  may  be  improved  in  the 
future,  the  nature  of  the  average  man  today  is 
such  that  he  will  not  toil  and  deny  himself  with- 
out prospect  of  rewards  to  accrue  to  himself  for 
his  own  personal  use.  He  will  not  strive  to  earn 
and  then  conserve  his  earnings  unless  he  can 
have  them  for  his  own,  to  control,  use  and  dispose 
of  at  his  pleasure.  However  it  may  be  with  a 
few  unselfish,  devoted  souls,  men  as  a  rule  are 
not  yet  so  altruistic  as  to  devote  themselves 
exclusively  to  the  good  of  others,  of  society.  I 
think  it  evident  that  if  the  impelling  natural 
desire  to  serve  one's  self  be  wholly  or  even  largely 
53 


CONCERNING  JUSTICE 

disregarded  by  society,  little  would  be  produced 
or  saved  by  voluntary  labor  and  self-denial. 
The  alternative  would  be  the  restoration  of  some 
system  of  enforced  labor,  of  slavery,  for  the  vast 
majority  of  men.  At  this  day,  after  centuries 
of  exhortation  to  practise  the  virtues  of  benevo- 
lence, of  brotherly  love,  of  self-sacrifice  for  the 
good  of  others,  men  do  not  from  pure  love  of 
humanity  voluntarily  endure  heat  and  cold,  ex- 
pend their  labor  and  savings  in  working  mines, 
in  braving  seas,  in  building  and  operating  fac- 
tories, railroads  and  steamships,  in  growing  com 
and  cotton.  Even  those  pubUc  offices,  in  which 
the  altruist  might  find  the  best  opportunities  for 
serving  the  people,  are  not  much  sought  for 
unless  some  personal  honor  or  pecuniary  profit 
be  attached  to  them.  Should  society  decree  that 
the  laborer,  whether  with  hands  or  brain,  should 
have  no  individual  reward  proportionate  to  the 
efficiency  of  his  labor,  but  only  his  numerical 
proportion  of  the  product  of  all  laborers,  I  fear 
the  efficiency  of  all  classes  of  laborers,  manual 
54 


THE  PROBLEM  OF  RIGHTS  —  Continued 

and    mental,    would    fall    to    the    "irreducible 
minimum," 

The  foregoing  statements  and  inferences  lead 
to  the  question,  how  far  should  society  go  in 
undertaking  to  regulate  the  conduct  and  restrict 
the  freedom  of  the  individual,  —  that  freedom 
which  would  be  his  if  he  were  alone  in  the  world? 
It  may  be  thought  that  this  is  a  question  of 
expediency  for  economists  and  sociologists,  and 
so  it  is  largely,  but  it  is  also  a  question  of  rights 
and  hence  of  justice,  since  every  action  or  non- 
action of  society  affects  the  freedom  of  the  in- 
dividual in  the  gratification  of  his  desires  or,  in 
other  words,  in  his  pursuit  of  happiness. 


55 


CHAPTER   IV 

JUSTICE    THE  EQUILIBRIUM    BETWEEN    THE 
FREEDOM  OF   THE  INDIVIDUAL  AND 
THE  SAFETY  OF  SOCIETY 

THE  question  stated  at  the  close  of  the  last 
chapter  is  most  important  and,  in  a  sense, 
is  perhaps  the  crux  of  the  whole  matter.  Not 
only  may  error  in  the  solution  of  the  question 
injuriously  affect  the  material  interests  of  in- 
dividuals and  hence  of  society  as  a  whole,  but 
it  may  cause  unhappiness  far  greater  than  that 
caused  by  any  material  loss,  viz.,  a  sense  of 
injustice.  As  said  by  the  English  judge,  "In- 
justice cuts  to  the  bone." 

At  the  outset  I  accept  Herbert  Spencer's  theory 
that  the  idea  of  justice  contains  two  sentiments, 
positive  and  negative;  the  one  the  sentiment  of 
the  individual  that  he  has  the  right  by  nature 
to  the  unimpeded  use  of  his  faculties  and  to  the 
56 


JUSTICE  THE  EQUILIBRIUM    ^ 

benefits  he  acquires  by  such  use;  the  other  the 
consciousness  that  the  presence  of  other  indi- 
viduals with  similar  claims  of  rights  necessitates 
some  limitation  of  his  own  claims.  Out  of  those 
two  sentiments  is  evolved,  I  think,  the  idea  of 
justice  or  injustice  according  as  they  are  or  are 
not  in  equilibrium.  They  suggest  the  definition 
that  justice  is  the  equilibrimn  between  the  full 
freedom  of  the  individual  and  the  restrictions 
thereon  necessary  for  the  safety  of  society.  The 
restraint  of  personal  conduct  within  too  narrow 
limits,  the  necessity  of  which  cannot  be  made 
clear,  excites  resentment,  stimulates  angry  pas- 
sions, and  hence  causes  unhappiness  through  a 
sense  of  injustice.  Restraint  within  necessary 
limits  only,  the  necessity  of  which  can  be  seen, 
arouses  no  resentment;  on  the  contrary,  it 
satisfies  the  individual,  favors  harmonious  co- 
operation, profits  society  and  increases  the  happi- 
ness of  its  members,  through  the  appreciation  of 
that  necessity. 
But  for  the  fixing  of  the  boundary  line  between 
57 


K. 


CONCERNING  JUSTICE 
necessary  and  unnecessary  restraints  upon  per- 
sonal conduct,  some  other  matters  still  are  to  be 
considered.  I  have  said  that  man  instinctively 
feels  resentment  at  interference  with  whatever 
he  may  think  is  his  right  to  do,  or  get,  or  keep. 
\  If  this  interference  is  from  any  of  his  fellow  men 
his  resentment  is  greater  than  when  it  is  from 
natural  forces.  There  arises  the  desire  for 
vengeance,  the  desire  to  "get  even,"  —  to  use  a 
common  phrase,  —  by  inflicting  a  corresponding 
injury  on  the  offender.  An  eye  for  an  eye,  a 
tooth  for  a  tooth,  is  instinctively  demanded  now 
as  of  old.  If  unable  to  inflict  a  corresponding 
injury  there  is  the  desire  to  inflict  an  equivalent 
injury.  To  paraphrase  Bacon,  revenge  is  justice 
running  wild. 

This  instinct  should  be  heeded  by  society. 
If  it  be  necessary  for  its  own  preservation  that 
society  restrain  this  instinct,  prohibit  private 
vengeance,  then  it  must  itself  provide  for  satis- 
faction of  the  instinct;  the  offender  must  be 
compelled  to  make  full  compensation  or  else  be 
S8 


JUSTICE  THE  EQUILIBRIUM 
made  to  suffer  in  turn  some  deprivation  of  rights 
claimed  by  him  that  shall  be  commensurate  with 
the  offense.  This  should  be  done  speedily  and 
gratuitously  so  far  as  possible.  Delay  and 
expense  cause  resentment  in  the  suitor  for  justice 
and  so  cause  injustice.  In  doing  this,  society 
not  only  protects  itself  but  it  restores  an  equili- 
brium of  rights  disturbed  by  the  offender.  This 
restoration  of  equilibrium  is  an  essential  element 
in  the  concept  of  justice.  Of  course,  as  society 
progresses  and  human  nature  improves,  this 
desire  of  the  injured  for  vengeance  on  the  offender 
becomes  weaker.  The  virtues  of  mercy,  forgive- 
ness, or  willingness  to  forego  the  demand  for 
punishment,  come  into  play  and  society  is  allowed 
to  attempt  to  reform  rather  than  to  punish,  or 
is  allowed  to  pardon  altogether.  These  virtues, 
however,  are  not  part  of  the  concept  of  justice. 
If  the  punishment  seems  inadequate,  or  the  par- 
don seems  undeserved,  there  remains,  or  is  again 
excited,  the  feeling  of  resentment.  The  equili- 
brium is  not  restored. 

59 


CONCERNING  JUSTICE 

Another  sentiment  or  feeling  is  to  be  reckoned 
with  in  order  to  secure  this  equilibrium  in  society. 
The  young,  untrained  child  is  impatient  of  all 
restraint.  It  is  only  by  experience  that  he 
learns  he  must  submit  to  restraint  if  he  would 
have  any  sort  of  association  with  his  fellows. 
He  learns  that  he  must  submit  to  the  rules  of  the 
game  if  he  would  have  a  part  in  the  game.  As 
he  comes  to  maturity  he  becomes  conscious  that 
society  must  impose  restraint  upon  him  and 
hence  feels  no  resentment  against  all  restraint, 
as  does  the  untrained  child.  He  does,  however, 
feel  resentment  if  restraints  are  imposed  upon 
him  in  his  pursuit  of  happiness  which  are  not 
imposed  upon  others  in  their  pursuit.  Similarly 
he  feels  resentment  if  exemptions  from  restraint 
are  allowed  some  others  and  not  allowed  him 
also.  Furthermore,  he  is  quick  to  note  any 
discrimination  against  himself  and  prone  to 
imagine  it  when  in  fact  there  is  none. 

Almost  as  soon  as  the  average  child  is  placed 
with  others  under  a  common  authority,  as  in  a 
60 


JUSTICE  THE  EQUILIBRIUM 
public  school,  he  begins  to  complain  of  the 
teacher's  partiality  to  other  pupils.  He  will 
stay  in  no  game  where  the  rules  operate  unequally 
against  him.  He  insists  on  an  even  chance  with 
his  fellow  players.  When  later  in  life  he  engages 
in  business  he  resents  any  favoritism  shown  by 
the  government  of  his  state  or  town  to  others  in 
the  same  or  a  similar  business.  This  feeling  is 
especially  noticeable  in  the  matter  of  taxation. 
If  one  believes  the  taxes  imposed  by  the  govern- 
ment are  unnecessarily  heavy  he  may  feel  some 
resentment,  but  his  resentment  is  much  greater 
if  he  believes  he  is  overtaxed  in  comparison  with 
his  fellows,  that  they  are  escaping  their  propor- 
tionate share  of  the  burden,  or  that  taxes  are 
imposed  on  his  products  in  order  to  favor  the 
products  of  others,  as  when  oleomargarine  was 
taxed  to  handicap  it  in  its  competition  with 
butter. 

This  feeling  of  resentment  at  inequality  of 
restraints  and  burdens  imposed  and  exemptions 

granted  is  not  ignoble,  is  not  a  feeling  to  be  sup- 
6i 


CONCERNING  JUSTICE 
pressed  or  even  concealed.  It  is  far  different 
from  the  feeling  of  envy.  If  I  can  only  afford 
to  ride  in  a  trolley  car  I  may  envy  the  man  who 
can  afford  to  ride  in  a  luxurious  motor  car  and 
yet  not  feel  wronged.  But  if  I  am  excluded 
from  a  public  street  car  to  which  he  is  admitted 
I  have  a  different  feehng,  that  of  resentment. 
I  may  be  perfectly  willing  that  all  others,  rich  or 
poor,  shall  use  the  streets  to  the  full  extent  that 
I  do,  but  if  it  be  proposed  that  my  use  shall  be 
limited  in  order  that  some  others  may  for  their 
private  purposes  have  more  than  an  equal  use 
with  me,  my  feeling  is  not  one  of  envy  but  of 
indignation.  So  I  can  appreciate  that  if  I  wil- 
fully or  through  carelessness  injure  another  I 
should  make  full  compensation,  and  hence  can 
cheerfully  submit  to  the  law  compelling  me  to 
do  so;  but  if  the  law  undertakes  to  exempt  any 
other  person  from  a  similar  liability,  I  feel  a  keen 
sense  of  wrong.  Conversely,  the  most  strict 
disciplinarian,  the  martinet  even,  if  otherwise 
competent  receives  ready  obedience  and  respect 
62 


JUSTICE  THE  EQUILIBRIUM 
if  it  is  seen  that  he  treats  alike,  according  to  their 
merits,  all  subject  to  his  authority.  This  feehng 
is  natural.  Nature  is  impartial  in  the  applica- 
tion of  its  laws.  It  allows  no  exemption.  Its 
fires  bum  the  weak  as  well  as  the  strong,  the 
child  as  well  as  the  man,  the  poor  as  well  as  the 
rich.  One  star  differs  from  another  star  in  glory, 
but  no  one  of  all  the  millions  of  stars  is  exempt 
from  any  of  the  laws  set  by  nature  for  stars. 

This  feeling  of  right  to  impartiality  of  treat- 
ment had  some  faint  expression  in  the  Massa- 
chusetts ''Body  of  Liberties"  of  1641,  in  which  it 
was  declared  that  the  liberties,  etc.,  therein 
enumerated  should  be  enjoyed  "impartially"  by 
all  persons  within  the  jurisdiction  of  the  colony. 
It  was  more  distinctly  recognized  in  the  Con- 
necticut Declaration  of  1818  and  a  part  of  the 
Connecticut  Bill  of  Rights  today,  "That  all  men 
when  they  form  a  social  compact  are  equal  in 
rights  and  that  no  man  or  set  of  men  are  entitled 
to  exclusive  public  emoluments  or  privileges 
from  the  community."  Again  it  appears  in  the 
63 


CONCERNING  JUSTICE 
federal  and  some  state  constitutions  in  the  pro- 
vision against  the  granting  of  titles  of  nobility. 
It  seems  to  be  at  least  impliedly  recognized  in 
the  XlVth  amendment  to  the  United  States  Con- 
stitution in  the  clause  that  no  state  "shall  deny 
any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws,"  since  "the  equal  protection 
of  the  laws"  necessarily  implies  protection  against 
unequal  laws,  laws  favoring  some  at  the  expense 
of  others  or  of  the  whole.  If  the  state  favors  one 
more  than  another  it  does  deny  that  other  equal 
protection.  I  do  not  subscribe  to  the  doctrine 
that  "the  greatest  good  of  the  greatest  number" 
is  to  be  sought.  The  only  legitimate  search  is 
for  the  good  of  the  whole  number  without  dis- 
crimination for  or  against  any  one.  This  senti- 
ment found  expression  in  the  once  popular 
slogan,  "Equal  rights  for  all.  Special  privileges 
for  none."  I  say  once  popular,  for  today  it 
would  seem  not  popular  in  practice.  True, 
special  privileges  are  still  loudly  denounced,  but 
under  the  name  of  special  exemptions,  they  are 
64 


J' 


JUSTICE  THE  EQUILIBRIUM 

still  demanded  by  those  who  denounce  them 
most  loudly. 

It  is  not  inequality  of  natural  powers  of  body 
or  mind,  nor  inequality  in  natural  conditions, 
that  excites  this  feeling  of  resentment  I  have 
noted.  The  man  of  feeble  natural  powers  may 
envy  him  of  strong  natural  powers,  but  he  can 
see  that  society,  that  law,  is  not  responsible  for 
that  inequality.  If  one  finds  himself  from  lack 
of  natural  ability  or  adaptiveness  unable  to 
accomplish  what  others  of  superior  ability  or 
adaptiveness  easily  accomplish,  and  hence  he  fails 
to  receive  the  prize  they  so  easily  win,  he  may 
feel  great  disappointment  and  regret,  but  if  honest 
with  himself  will  not  attribute  his  failure  to  the 
injustice  of  society. 

It  is  not  essential  to  the  preservation  of  society 
and  the  race  that  such  inequalities  should  be  re- 
moved, that  all  men  should  be  reduced  to  a  dead 
level  of  capacity,  that  human  nature  should 
be  ignored.  It  is  strongly  felt,  however,  that 
society  should  not  itself  create  artificial  inequal- 
65 


/ 


CONCERNING  JUSTICE 
ities,  should  not  allow  one  man  or  set  of  men  a 
liberty  it  will  not  allow  to  others,  should  not 
impose  burdens  on  one  man  or  set  of  men  to  be 
borne  by  them  alone  while  others  are  exempt; 
or  if  it  does  undertake  to  do  so  it  should  be  able 
to  demonstrate  that  such  artificial  inequaUty  is 
necessary  for  the  safety  of  all.  The  intensity  of 
this  feeling  against  artificial  inequahties  is  so 
great  that  men  sometimes  prefer  equality  before 
the  law  even  to  liberty.  When  the  British 
ambassador  said  to  Madam  De  Stael  that 
Frenchmen  had  no  more  liberty  after  the  Revolu- 
tion than  before,  she  answered  that  they  had 
acquired  equality  before  the  law  and  they  pre- 
ferred that  to  more  liberty.  This  sentiment  was 
tersely  and  well  expressed  in  the  French  Declara- 
tion of  Rights  of  1795.  "Equahty  consists  in 
this,  that  the  law  is  the  same  for  all  whether  it 
protects  or  punishes." 

Of  course,  no  assertion  of  rights  can  be  carried 
to  the  extent  of  the  dictum,  "Fiat  Justitia  ruat 
Respublica,"  for  if  the  state  fall,  all  hopes  of 
66 


JUSTICE  THE  EQUILIBRIUM 

justice  fall  with  it.    When  the  alternative  is  the 
conquest  of  the  particular  society  by  invasion  or 
its   disorganization   by  rebellion   or   rioting   or 
otherwise,  some  of  its  members  must  submit  to      / 
the  sacrifice  of  some  or  all  of  their  rights.    Nature  ,' 
will  sacrifice  individuals  for  the  preservation  of  ' 
the  race.    Society  must  sometimes  do  the  same. 
"Inter  arma  silent  leges."    But  such  times  are 
exceptional  and  not  within  the  scope  of  our 
inquiry. 
'        To  sum  up  the  matter,  justice  is  the  according       ] 
'     to  every  one  his  right,  and  that  right  is  such      ; 
freedom  of  action  in  gratifying  one's  desires  as 
can  be  exercised  in  harmony  with  Hke  freedom 
by  others.    In  other  words,  it  is  equal  freedom, 
equal  restraint.    It  is  order  and  harmony,    Plato 
and  Aristotle  were  right  in  teaching  that  order 

J  is  an  essential  element  of  justice^^ _ 

But  who  is  to  determine  the  matter?    Who  is 

to  determine  what  degree  of  restraint  or  hberty 

is  necessary  to  secure  this  order  and  harmony, 

this  justice?    Obviously  it  is  society,  or  rather, 

67 


CONCERNING  JUSTICE 

individuals  acting  as  a  whole  through  society 
and  not  each  individual  acting  for  himself,  that 
must  determine  such  questions.  Society  has  the 
responsibility.  If  it  imposes  too  many  restraints 
or  imposes  them  unequally  it  excites,  as  said 
before,  resentment  and  antagonism,  sometimes 
to  the  extent  of  resistance.  If  it  imposes  no 
more  restraints  than  are  necessary  and  imposes 
them  equally,  order  and  harmony  are  secured. 
And  when  we  have  this  equal  freedom  with 
equal  and  only  necessary  restraints  we  have  order 
and  harmony,  —  in  other  words,  justice.  Indeed, 
to  repeat,  justice  in  some  of  its  aspects  may  be 
considered  as  the  desired  equilibrium  between  the 
needs  of  society  and  the  interests  of  its  individual 
^members. 

I  have  left  out  of  the  account  various  vir- 
tues, —  pity,  sympathy,  philanthropy,  gener- 
osity and  the  like.  Though  these  make  social 
life  more  agreeable  and  contribute  much  to  the 
sum  of  human  happiness,  they  are  not  essential 
to  the  existence  of  the  race  or  society.  Society 
68 


JUSTICE  THD  EQUILIBRIUM 

as  an  organization  is  not  held  together  by  these 
virtues,  though  many  of  its  weaker  members 
might  suffer  and  perish  if  they  were  non-exist- 
ent. Allow  men  as  much  freedom  of  thought 
and  action  as  can  be  exercised  without  interfer- 
ence with  like  freedom  of  others,  but  restrain 
them  from  exercising  any  greater  freedom,  and 
they  can  and  will  live  together  in  society  though 
they  may  be  wholly  selfish  in  feeUng  and  con- 
duct. What  is  called  the  golden  rule,  that  we 
should  do  to  others  as  we  would  have  them  do  to 
us,  is  a  precept  of  philanthropy,  of  charity,  not  of 
justice.  The  rule  enunciated  by  Confucius  five 
hundred  years  before  Christ,  the  rule  that  we 
should  not  do  to  others  what  we  would  not  have 
them  do  to  us,  is  sufficient  for  the  existence  of 
society.  The  French  Convention  of  1793  stated 
the  proposition  in  these  words:  "Liberty  is  the 
power  that  belongs  to  man  to  do  whatever  is 
not  injurious  to  the  rights  of  others;  it  has  na- 
ture for  its  principle,  justice  for  its  rule,  law  for 
its  defense:  its  normal  limit  is  the  maxim,  Do 
69 


CONCERNING  JUSTICE 
not  to  another  that  which  you  do  not  wish  to 
be  done  to  you." 

This  order  and  harmony,  however,  are  not 
easily  secured.  Not  only  are  there  honest  dif- 
ferences of  opinion  as  to  what  restraints  are 
necessary  and  how  and  on  whom  they  should 
be  imposed,  but  society  is  divided  into  groups 
or  classes  with  interests  conflicting,  or  thought 
to  be  conflicting,  and  each  seeking  to  impose 
restraints  on  others  while  retaining  freedom  for 
themselves.  While  professing  to  demand  more 
liberty  and  equaHty,  they  are  often  really  insist- 
ing on  greater  restraint  and  inequality.  The 
successful  insistence  of  the  trades-unions  of  Eng- 
land in  securing  from  ParUament  a  statute  ex- 
empting their  funds  from  answering  in  damages 
for  injuries  caused  by  them  is  a  conspicuous  in- 
stance. Another  and  equally  glaring  example 
is  the  effort  in  this  country  to  exempt  from 
the  law  against  combinations  in  restraint  of 
trade,  combinations  to  increase  the  cost  of  living 
by  increasing  the  prices  of  agricultural  products 
70 


JUSTICE  THE  EQUILIBRIUM 

and  the  prices  to  be  paid  for  labor.  The  effort 
seems  to  be  to  compel  men  to  compete  in  the  use 
of  their  savings  no  matter  how  wasteful  the 
competition,  and  to  forbid  men  competing  in 
the  use  of  their  labor,  no  matter  what  the  idle- 
ness thereby  caused.  I  think  it  a  truism  that 
whoever  seeks  to  be  exempted  from  the  restric- 
tions or  liabilities  he  would  impose  on  others, 
seeks  not  justice,  but  to  do  injustice. 

Another  hindrance  arises  out  of  the  very  vir- 
tues of  pity  and  sympathy.  These  impel  many 
to  endeavor,  not  to  persuade,  but  to  compel  the 
more  efficient  and  prudent  who  have  by  their 
farsightedness,  courage,  industry  and  thrift  made 
good  provision  for  themselves  and  their  ojBF- 
spring,  to  provide  also  for  the  inefficient  and  the 
improvident.  To  be  asked  to  give  to  these  does 
not  offend  any  sense  of  right,  but  if  one  be  told 
he  must  give  he  feels  resentful  at  once.  He  feels 
he  has^^right  to  decide  for  himself  to  whom 
and  to  what  extent  he  shall  give  of  his  savings. 
Society  did  not  come  into  existence  nor  does  it 
71 


I 


CONCERNING  JUSTICE 

now  exist  to  correct  the  inequalities  of  nature, 
the  inequalities  of  natural  powers,  nor  to  pre- 
vent the  efficient  and  prudent  receiving  and 
enjoying  the  results  of  their  efficiency  and  pru- 
dence. Nature  itself  makes  no  such  effort.  It 
rather  tends  to  eliminate  the  less  efficient  and 
preserve  the  more  efficient.  Even  if  society 
may  strive  to  preserve  the  inefficient  and  im- 
provident, should  it  do  so  by  hampering  and 
restraining  those  wiser  and  more  capable?  We 
must  expect  nature  to  deal  with  society,  with 
states  and  nations,  as  it  does  with  individuals. 
If  a  state  by  its  laws  discourages  the  exercise  to 
its  full  extent  of  the  efficiency  of  the  few  and  ren- 
ders less  severe  the  penalties  for  the  inefficiency 
and  imprudence  of  the  many,  it  cannot  long 
maintain  any  advantageous  position  among  other 
nations.  Whatever  the  precepts  of  religion,  of 
philanthropy,  or  of  other  virtues  may  require, 
the  precepts  of  justice  do  not  require  society  to 
support  men  in  idleness  nor  even  to  furnish 
them  with  employment.  Neither  do  the  pre- 
72 


JUSTICE  THE  EQUILIBRIUM 
cepts  of  justice  require  the  state  to  furnish  op- 
portunities, nor  even  to  establish  equality  of 
opportunity,  but  only  equality  of  right  to  take 
advantage  of  opportunity.  It  is  a  saying,  but 
not  a  fact,  that  opportunity  knocks  once  at 
every  man's  door.  Nature  does  not  bring  op- 
portunities, much  less  equal  opportunities,  to 
men's  doors.  It  requires  men  to  go  out  and 
search  for  opportunities,  or  at  least  to  be  on  the 
watch  for  them,  as  it  requires  men  to  search  or 
watch  for  other  things  they  desire;  and  he  of 
the  quickest  perception  and  most  farsighted  will 
soonest  see  them,  and  when  seen  he  does  not  feel 
any  obligation  to  share  them  with  others  less 
vigilant  or  even  less  fortunate.  Society  does  I 
not  support  its  members,  they  support  it  and 
^ust  support  it  and  themselves  by  their  own 
exertions,  find  their  own  place,  find  employment 
for  themselves,  so  far  as  the  precepts  of  justice 
are  concerned. 

However  prevalent  the  sentiment  that  more!  j 
than  equaUty  of  right  to  use  his  opportunities]  j 
73 


CONCERNING  JUSTICE 
is  due  to  any  one,  it  is  not  an  instinctive  senti- 
ment. The  contrary  is  the  fact.  Unless  we  are 
dominated  by  some  other  sentiment  than  justice, 
we  instinctively  yield  assent  to  Aristotle's  propo- 
sition that  the  prize  flute  should  be  awarded  to 
the  best  flute  player  whether  opulent  or  indigent, 
literate  or  ilUterate,  citizen  or  slave.  A  group 
of  small  children  exploring  the  fields  and  woods 
for  wild  flowers  will  concede  to  each  what  flowers 
he  finds  whether  by  his  better  eyes  or  better  luck. 
So  with  groups  of  small  boys  fishing  in  the  streams 
and  brooks.  In  games  of  cards  for  stakes,  the 
players  do  not  expect  to  hold  cards  of  equal 
value  and  they  concede  the  stakes  to  the  winner, 
whether  won  by  his  greater  skill  or  superior  cards. 
Also  there  is  an  instinctive  sentiment  that 
the  evil  results  of  one's  own  conduct  should  be 
borne  by  him  alone.  If  one  suffers  loss  through 
his  own  misjudgment,  incapacity,  or  want  of 
care,  then,  whatever  the  precepts  of  other  vir- 
tues may  require,  we  do  not  feel  that  justice 
requires  us  to  bear  any  part  of  that  loss.  On  the 
74 


JUSTICE  THE  EQUILIBRIUM 

contrary,  we  feel  instinctively  that  he  should 
bear  the  loss  alone,  that  it  is  the  natural  penalty 
for  his  lack  of  judgment,  capacity,  or  care.    If 


my  neighbor  neglects  to  insure  his  house  and 
loses  it  by  fire,  I  see  no  reason  why  he  should 
not  bear  the  loss  alone. 

In  this  connection,  perhaps  I  should  not  omit  '^^^V^T-4 
to  notice  references  often  made  to  the  rights  of 
labor,  the  rights  of  capital,  property  rights,  and 
personal  rights,  as  if  they  were  different  in  their 
nature  and  importance.  I  do  not  as  yet  see  such 
difference.  All  rights  are  personal  rights,  and 
the  right  of  each  to  control  his  labor,  his  savings, 
his  person,  and  his  property  is  the  same.  I  am 
not  yet  convinced  that  the  right  of  the  laborer 
to  make  use  of  his  labor  is  superior  to  that  of 
the  capitalist  to  make  use  of  his  capital;  that, 
whatever  his  greater  need,  the  right  of  one  with- 
out property  is  superior  to  that  of  one  who  has 
property;  that  the  right  to  get  is  superior  to  the 
right  to  save.  It  is  also  loudly  proclaimed  that 
"property  rights"  are  of  little  importance  com- 
75 


CONCERNING  JUSTICE 
pared  with  "human  rights,"  unmindful  of  the 
truth  that  the  right  "of  acquiring,  possessing' 
and  defending  property"  is,  as  much  as  any- 
other,  a  human  right  and,  as  such,  necessary  to 
be  maintained  if  the  race  is  to  rise  above  its 
primitive  condition  of  poverty.  However,  I  do 
not  see  that  the  differences,  if  any,  affect  the 
general  question  of  individual  rights. 

The  conclusion  I  arrive  at  is  this:    Society, 
and  with  it  the  race,  cannot  survive  unless  it 
{ restrains  to  some  extent  individual  freedom  of 
action,  nor  can  any  particular  society  long  sur- 
;  vive  if  it  carry  that  restraint  too  far.    It  should, 
,    j  therefore,  ascertain  and  maintain  the  line,  the 
i/      equilibrium,    between    necessary    freedom    and 
necessary  restraint.     It  is  only  by  such  action 
of  society  that  justice  can  be  established  and 
the  welfare  of  the  race  be  advanced.    This  brings 
us  to  the  question  of  how  and  by  what  instru- 
mentalities society  can  best  perform  this  mo- 
mentous task,  the  securing  of  justice.    This  will 
be  considered  in  the  next  chapter. 
76 


CHAPTER   V 

JUSTICE  CAN   BE  SECURED   ONLY    THROUGH 

GOVERNMENTAL  ACTION.     THE  BEST 

FORM  OF  GOVERNMENT 

IN  the  present  state  of  civilization  society 
cannot  act  effectively  for  determining  and 
maintaining  the  hne,  the  equilibrium,  between 
necessary  freedom  and  necessary  restraint,  or 
,  in  short,  justice,  except  through  some  govern- 
mental organization  with  power  to  define  and 
enforce.  Appeals  to  altruistic  sentiments  will 
not  suffice.  This  truth  was  recognized  by  the 
framers  of  our  federal  and  many  state  constitu- 
tions, in  naming  first  among  the  purposes  of 
government  the  estabhshment  of  justice. 

Any   government,   however,   or   rather   those 

entrusted  with  its  administration,  may  through 

mistake  or  wilfulness  do  injustice  tc  some  of  its 

subjects.    It  has  often  done  so  in  the  past  and 

77. 


CONCERNING  JUSTICE 

the  future  is  not  free  from  the  danger.  The 
very  possession  of  power  excites  a  desire  to  use 
it,  and  it  is  an  admitted  characteristic  of  our 
human  nature  that  those  vested  wdth  power,  po- 
litical or  other,  are  prone  to  exercise  it  unduly, 
to  abuse  it.  Men  in  authority  are  often  said  to 
be  "drunk  with  power."  Hence  to  ensure  jus- 
tice the  governmental  organization  should  be 
such  that  the  limits  of  the  various  powers  of  the 
government  be  carefully  defined  and  its  adminis- 
trators be  kept  within  those  limits. 

Some  years  ago  I  might  have  pointed  to  our 
own  federal  and  state  governments  as  the  best 
in  form  and  character  for  establishing  justice 
and  rested  there.  In  later  years,  however,  the 
superiority  of  our  system  is  questioned,  and  radi- 
cal changes  are  urged,  and  indeed  some  have 
been  made,  in  the  federal  system  and  in  that  of 
some  of  the  states.  I  feel,  therefore,  that  I 
should  make  some  defense  of  the  system,  be- 
lieving as  I  do  that  in  its  general  form  and  char- 
acter it  is  best  adapted  to  secure  firmly  as  much 
78 


BEST  FORM  OF  GOVERNMENT 

individual  liberty  of  action  and  equality  of  right 
as  is  consistent  with  the  welfare  of  the  whole 
number,  or,  in  other  words,  best  adapted  to  se- 
cure justice. 

It  has  become  a  familiar  maxim  that  the  func- 
tions and  powers  of  government  may  all  be 
grouped  in  three  classes  or  departments,  corre- 
sponding to  the  duties  already  named:  (i)  that 
of  determining  what  rules  and  regulations  should 
be  observed,  what  restraints  and  duties  should 
be  imposed  upon  its  subjects;  (2)  that  of  deter- 
mining whether  in  a  given  case  any  of  these 
rules,  etc.,  have  been  violated;  and  (3)  that  of 
punishing  their  violation  and  otherwise  enfor- 
cing their  observance.  These  three  groups  have 
come  to  be  called  the  three  powers  of  govern- 
ment and  to  be  designated  as  the  legislative, 
judicial,  and  executive,  though  they  are  usually 
named  in  another  order  as  the  executive,  legisla- 
tive, and  judicial. 

The  most  efficient  form  of  government  for 
good  or  evil,  and  the  quickest  to  act,  is  undoubt- 
79 


CONCERNING  JUSTICE 
edly  that  in  which  all  of  these  powers  are  united 
in  a  single  individual.  If  that  individual  were 
always  strong,  yet  peace-loving,  self-controlled, 
sagacious  and  exclusively  devoted  to  the  welfare 
of  his  subjects,  that  form  of  government  would 
perhaps  secure  them  justice  most  surely  and 
speedily.  Such  men,  however,  are  rare  and  such 
governments  have  been  found  to  be  invariably 
and  almost  inevitably  arbitrary  in  their  dealings 
with  their  subjects,  and  in  the  plenitude  of  their 
power  to  become  oppressive.  While  they  may 
eflfectually  protect  their  subjects  from  foreign 
aggression  and  domestic  anarchy,  their  tendency 
is  to  impose  burdens  and  restrict  individual  hb- 
erty  more  than  necessary,  and  to  disregard  the 
innate  desire  of  men  for  liberty  or  at  least  for 
equaUty  of  restraint.  This  form  of  government 
has  already  largely  disappeared  and  is  further 
disappearing,  though  it  may  again  be  resorted 
to  for  the  restoration  of  order,  should  the  present 
forms  of  government  fail   to  prevent  violence 

and  preserve  the  peace. 

80 


BEST  FORM  OF  GOVERNMENT 
But  other  forms  of  government  have  not  been 
and  are  not  yet  wholly  free  from  the  same  ob- 
jectionable tendency.  The  vesting  of  all  these 
governmental  powers  in  a  group  or  class  of  per- 
sons instead  of  one  person  has  been  followed  by 
the  same  results.  Aristocracies  or  oligarchies 
have  the  same  tendency  and  even  in  a  greater 
degree.  They  have  proved  even  more  selfish 
and  tyrannical  than  the  single  ruler.  They, 
like  all  crowds,  are  less  sensitive  in  conscience, 
less  moved  by  appeals  to  reason,  than  is  the  single 
individual.  They  ofifend  more  the  sentiment  of 
equality.  The  French  Revolution  was  not  so 
much  against  the  king  as  against  the  nobility, 
who  with  their  oppressive  feudal  exemptions 
had  excited  the  resentment  of  the  people  at 
large.  It  was  not  till  after  he  had  cast  in  his 
lot  with  the  emigres  that  the  king  was  deposed 
and  guillotined. 

Nor  have  pure  democracies,  in  the  few  instances 
where  they  have  undertaken  to  exercise  directly 
all  the  powers  of  government,  showed  less  ten- 
8i 


CONCERNING  JUSTICE 
dency  to  be  arbitrary  and  inconsiderate  of  indi- 
vidual freedom  and  desires.  The  nearest 
approach  to  such  a  government  was  that  of 
ancient  Athens  where  the  populace  sent  into 
exile,  practically  without  trial,  Aristides,  called 
the  Just,  Miltiades,  the  victor  of  Marathon,  and 
Themistocles,  the  victor  of  Salamis.  The  ex- 
cesses of  the  Paris  Commune  of  1870  during  its 
reign,  the  lynchings  of  today  by  mobs  of  so- 
called  "respectable  citizens"  who  assume  the 
power  to  accuse,  judge  and  execute  all  at  once, 
indicate  how  much  regard  unrestrained  democ- 
racies would  have  for  the  rights  of  their  individual 
members. 

Nevertheless,  despite  the  danger  of  more  or 
less  arbitrariness,  of  more  or  less  oppression  of 
the  individual,  any  government  must  be  made 
strong  enough  perfectly  to  maintain  order  and 
peace  among  its  subjects.  Order  is  earth's  as 
well  as  heaven's  first  law.  The  goddess  Themis 
in  the  early  Greek  mythology  was  the  goddess  of 
order  as  well  as  the  supplier  of  Ikemisks  or  de- 
82 


BEST  FORM  OF  GOVERNMENT 
cisions.  She  was  present  as  the  spirit  of  order 
in  the  councils  of  gods  and  men.  The  govern- 
ment that  cannot  or  will  not  maintain  order  and 
peace,  prevent  violence  and  fraud,  enforce  in- 
dividual rights  and  redress  individual  wrongs  com- 
pletely and  promptly,  is  so  far  a  failure  and  what- 
ever its  form  should  be  reformed  or  overthrown. 
Even  military  despotism  is  better  than  disorder. 
On  the  other  hand,  there  must  be  taken  into 
account  the  tendency,  already  mentioned,  of  the 
possessor  of  unlimited  power  over  others  to  use 
it  for  his  own  benefit  or  pleasure  at  the  expense 
of  those  subject  to  his  control,  where  not  re- 
strained by  affection  or  like  virtues.  Under  all 
governments  there  has  been  more  or  less  fric- 
tion between  the  persons  governing  and  those 
governed;  more  or  less  strife,  sometimes  culmi- 
'  nating  in  rebellion  and  even  revolution.  If  it 
be  said  that  under  a  government  by  the  people 
directly,  a  pure  democracy,  such  as  seems  to  be 
advocated  at  this  day,  there  would  be  no  dis- 
tinction between  governors  and  governed,  that 
83 


CONCERNING  JUSTICE 

all  would  be  governors  and  governed  alike,  the 
answer  is  that  in  a  pure  democracy  the  govern- 
ing power  is  and  can  be  exercised  by  only  a  part 
of  the  people,  a  majority  it  may  be,  but  stiU 
only  a  part.  This  part  are  the  governors.  The 
other  part,  perhaps  nearly  as  numerous,  are 
governed.  Fricticm..,aad_.jey-en — fa£tiD4Jis__strife 
would  still  exist.  Indeed,  a  government  by  a 
pure  democracy  ruling  directly  woulcT  probably 
be  more  arbitrary  than  any  other,  as  was  the 
case  in  Athens.  The  government  by  one,  or 
that  by  a  few,  would  be  restrained  to  some  ex- 
tent by  public  opinion,  would  refrain  from 
extreme  measures  lest  they  excite  effectual  re- 
sistance, but  a  majority  would  feel  no  such 
restraint.  It  would  itself  constitute  pubUc  opin- 
ion and  it  would  be  less  likely  to  fear  resistance. 
It  is  evident,  therefore,  that  the  frame  of 
government  should  be  such  as  to  secure  uni- 
formity in  its  action  so  that  it  shall  not  act 
arbitrarily  and  unequally  on  its  subjects.  I  as- 
sume that  no  sane  man  would  desire  to  live 
84 


BEST  FORM  OF  GOVERNMENT 
under  any  government  where  the  wielders  of  the 
governmental  power,  one  or  many,  are  entirely 
without  legal  restraint.  We  all  desire  normally, 
not  only  order  and  peace,  but  also  personal 
liberty  and  equality  of  rights.  The  problem, 
then,  is  how  to  order  the  frame  of  government 
so  that  it  shall  be  strong  enough  to  protect  us 
individually  as  well  as  collectively,  but  not  left 
able  to  oppress  us  or  any  of  us.  As  said  by 
Alexander  Hamilton,  we  "must  first  enable  the  / 
government  to  control  the  governed,  and  in  the 
next  place  oblige  it  to  control  itself."  -^ 

One  great  step  toward  such  a  form  of  govern- 
ment was  made  in  the  estabhshment  of  our 
federal  and  state  governments  by  giving  effect 
to  the  theory  of  the  tripartite  nature  of  govern- 
mental powers,  entrusting  each  of  the  three  to  a 
different  person  or  group  of  persons,  or,  in  other 
words,  to  a  different  department,  each  restrain- 
ing the  other  departments  from  exceeding  their 
defined  powers,  so  that  the  government,  however 
democratic,  shall  not  run  wild.  At  this  day, 
8S 


CONCERNING  JUSTICE 

however,  even  this  feature  of  our  form  of  govern- 
ment is  assailed  as  hampering  the  people  and 
their  government  and  greatly  delaying  desired 
reforms.  It  may  be  admitted  that  a  government 
with  its  powers  thus  separated  in  different  de- 
partments is  not  able  to  act  as  quickly  as  desired 
by  zealous  persons  confident  of  the  excellence  of 
their  schemes  and  impatient  for  their  realization, 
but,  on  the  other  hand,  it  is  less  liable  to  act  too 
hastily,  less  liable  to  act  arbitrarily,  or  to  disre- 
gard individual  rights  and  interests. 

The  idea  of  a  division  of  governmental  powers 
is  not  of  recent  origin.  Aristotle  argued  that  the 
judges  should  have  no  other  political  power, 
should  not  themselves  enforce  their  decisions. 
In  Rome  under  the  RepubHc  there  was  divided 
between  the  pretor  and  the  judex  the  power  to 
decide  controversies.  The  pretor  had  other 
duties,  but  the  judex  was  confined  to  the  single 
duty  to  hear  and  determine.  The  framers  of  our 
Federal  Constitution  and  of  our  early  state  con- 
stitutions did  not  act  hastily  nor  unad\'isedly. 
86 


BEST  FORM  OF  GOVERNMENT 
As  heretofore  stated,  the  long  controversy  with 
Great  Britain  over  the  relations  between  that 
country  and  her  Colonies,  the  arbitrary  acts  of 
the  British  King  and  Parliament,  caused  in  the 
Colonies  a  profound  study  of  the  nature  of  govern- 
ment: what  should  be  its  purposes  and  how  best 
to  effect  its  purposes  and  avoid  its  abuses.  The 
principal  men  among  them  in  each  Colony  were 
familiar  with  the  history  of  governments  and 
with  the  theories  of  government  advanced  by 
European  lawyers  and  political  philosophers. 
They  were  acquainted  with  the  arguments  of 
Montesquieu  and  others  that  a  separation  of  the 
powers  of  government  and  the  vesting  of  each, 
the  executive,  legislative,  and  judicial,  in  different 
hands  was  essential  to  liberty.  They  did  not 
merely  theorize,  however.  They  had  themselves 
lived  and  labored  under  governments  not  thus 
divided  in  functions  or  only  partially  so.  Colonial 
governors  had  assumed  legislative  functions  in 
the  promulgation  of  ordinances,  and  also  judicial 
functions  as  judges  of  probate  and  in  other  ways. 
87 


CONCERNING  JUSTICE 

The  colonial  legislatures  did  not  hesitate  to 
dictate  to  the  courts  in  particular  cases  and 
often  acted  as  a  court  of  appeal.  In  Massachu- 
setts Bay  the  legislature  came  to  be  known  as 
the  General  Court  and  exercised  judicial  power 
freely,  sometimes  calling  in  the  judges  to  sit 
with  them.  The  same  individual  could  at  one 
and  the  same  time  fill  an  executive  and  a  legisla- 
tive or  judicial  office.  In  colonial  Massachusetts 
WiUiam  Stoughton  held  the  offices  of  military 
commander,  lieutenant  governor,  and  chief  justice 
at  the  same  time.  Because  of  the  frequent  and 
prolonged  absences  of  the  titular  governor  he 
was  often  the  acting  governor.  As  an  inevitable 
consequence,  when  sitting  as  a  judge  he  was 
more  a  zealous  prosecutor  than  an  impartial 
judge.  His  conduct  in  the  witchcraft  trials  was 
comparable  to  that  of  Jeffreys  in  the  infamous 
"Bloody  Assizes."  Hutchinson  was  also  often 
acting  governor  while  holding  his  commission 
as  chief  justice. 
In  view  of  their  experience  and  deep  study, 
88 


BEST  FORM  OF   GOVERNMENT 

the  opinions  formed  by  the  framers  of  the  early 
constitutions  of  this  country  should  be  of  great 
weight  in  forming  our  own.  It  is  worth  while 
to  cite  the  opinions  of  some.  Thomas  Jefferson 
was  not  in  his  day,  nor  has  he  been  since, 
regarded  as  opposed  to  popular  government. 
Virginia  had  as  early  as  1776  declared  in  its  first 
constitution  that  the  three  great  departments 
should  be  kept  separate.  Jefferson,  who  besides 
his  other  opportunities  of  observing  the  opera- 
tion of  government  was  himself  chief  magistrate 
of  the  state,  criticized  that  constitution  as  not 
making  such  separation  effectual.  In  his  "  Notes 
on  Virginia"  he  wrote  of  it:  "All  the  powers  of 
government,  legislative,  executive  and  judiciary, 
result  to  the  legislative  body.  The  concentrating 
these  in  the  same  hands  is  precisely  the  defini- 
tion of  despotic  government.  It  will  be  no 
alleviation  that  these  powers  will  be  exercised 
by  a  plurality  of  hands  and  not  by  a  single  one. 
One  hundred  and  seventy-three  despots  would 
surely  be  as  oppressive  as  one.  Let  those  who 
89 


CONCERNING  JUSTICE 
doubt  it  turn  their  eyes  on  the  republic  of  Venice. 
As  little  will  it  avail  us  that  they  are  chosen  by 
ourselves.  An  elective  despotism  was  not  the 
government  we  fought  for,  but  one  which  should 
not  only  be  founded  on  free  principles,  but  in 
which  the  powers  of  government  should  be  so 
divided  and  balanced  among  several  bodies  of 
magistracy  as  that  no  one  could  transcend  their 
legal  limits  without  being  effectually  checked 
and  restrained  by  the  others.  For  this  reason  the 
convention  which  passed  the  ordinance  of  govern- 
ment laid  its  foundation  on  this  basis,  that  the 
legislative,  executive  and  judiciary  departments 
should  be  separate  and  distinct,  so  that  no  person 
should  exercise  more  than  one  of  them  at  the 
same  time.  But  no  barrier  was  provided  between 
these  several  powers."  It  was  this  defect,  this 
lack  of  barriers,  that  Jefferson  lamented. 

When  the  draft  of  the  Federal  Constitution  of 
1787  was  submitted  to  the  states,  one  of  the 
principal  objections  urged  against  it  was  that 

in  its  structure  sufficient  regard  was  not  paid  to 
90 


BEST  FORM  OF  GOVERNMENT 
keeping  the  three  departments  of  government 
separate  and  distinct.  In  reference  to  this 
objection  Madison  wrote  in  the  "Federalist": 
"No  political  truth  is  certainly  of  greater  in- 
trinsic value  or  is  stamped  with  the  authority  of 
more  enlightened  patrons  of  Hberty  than  that 
on  which  this  objection  is  founded.  The  accu- 
mulation of  all  powers,  legislative,  executive,  and 
judiciary,  in  the  same  hands,  whether  of  one, 
few,  or  many,  and  whether  hereditary,  self- 
appointed,  or  elective,  may  justly  be  pronounced 
the  very  definition  of  tyranny.  Were  the  Fed- 
eral Constitution  therefore  really  chargeable  with 
this  accumulation  of  powers,  or  with  a  mixture 
of  powers  having  a  dangerous  tendency  to  such 
an  accumulation,  no  further  argument  would  be 
necessary  to  inspire  a  universal  reprobation  of 
the  system."  He  elsewhere  declared  the  maxim 
to  be  a  "fundamental  article  of  liberty." 

Hamilton  was  apprehensive  of  danger  to  Hberty 
from  the  legislative  department  and  favored  a 
strong  executive  to  guard  against  it.    He  de- 
91 


CONCERNING  JUSTICE 

dared  in  the  "Federalist"  that  the  legislative 
department  was  "everywhere  extending  the 
sphere  of  its  activity  and  drawing  all  power  into 
its  impetuous  vortex,"  —  that  the  people  "never 
seem  to  have  recollected  the  danger  from  legisla- 
tive usurpation  which  by  assembling  all  power 
in  the  same  hands  must  lead  to  the  same  tyranny 
as  is  threatened  by  executive  usurpation." 
Washington  in  his  Farewell  Address,  after  much 
experience  with,  and  observation  of,  legislative 
action,  said:  "The  necessity  of  reciprocal  checks 
in  the  exercise  of  political  power  by  dividing 
and  distributing  it  in  different  depositaries  and 
constituting  each  the  guardian  of  the  public  weal 
against  invasions  by  the  others  has  been  evinced 
by  experiments  ancient  and  modem,  some  of 
them  in  our  own  country  and  under  our  own 
eyes.  To  preserve  them  must  be  as  necessary 
as  to  institute  them." 

After    having    lived    for    generations    under 
governments  in   which   there   was  no   eflfective 

division  of  powers,   the  people  of  the  various 
92 


BEST  FORM  OF  GOVERNMENT 
colonies  in  setting  up  their  own  governments  at 
the  time  of  the  Revolution  very  generally  de- 
clared for  such  division,  in  more  or  less  explicit 
terms.  Even  in  the  few  cases  where  the  division 
was  not  expressly  made,  it  was  implied  in  the 
constitution.  The  provision  in  the  constitution 
of  Massachusetts  adopted  in  1780  may  be  cited 
as  an  example  of  the  strength  of  the  conviction. 
"In  the  government  of  this  Commonwealth  the 
legislative  department  shall  never  exercise  the 
executive  and  judicial  powers  or  either  of  them; 
the  executive  shall  never  exercise  the  legislative 
and  judicial  powers  or  either  of  them;  the  judicial 
shall  never  exercise  the  legislative  and  executive 
powers  or  either  of  them."  To  this  provision  were 
appended,  as  the  reason  for  it,  the  memorable 
words,  "To  the  end  that  it  may  be  a  government 
of  laws  and  not  of  men." 

From    1776   to   the  present  century  as  new 

states  were  formed  their  people  in  most  instances 

have  adopted  similar  provisions.    Perhaps  the 

people    of    Maine    when    they    separated    from 

93 


CONCERNING  JUSTICE 

Massachusetts  in  1820  adopted  the  most  stringent 
provision  by  prohibiting  not  only  the  depart- 
ments but  all  the  persons  in  either  department 
from  exercising  any  of  the  powers  properly 
belonging  to  either  of  the  other  departments. 

Of  course  some  exceptions  to  the  rule  are 
necessary  and  these  are  usually  named  in  the 
constitution  itself.  Again  the  dividing  line  be- 
tween the  powers  cannot  always  be  precisely 
defined  and,  further,  each  department  in  the 
performance  of  its  own  proper  functions  may 
sometimes  be  obliged  to  exercise  a  power  strictly 
pertaining  to  another  department.  All  that 
the  maxim  requires  is  that  the  three  powers 
should  be  kept  as  distinct  and  separate  as  possible 
and  have  the  government  still  go  on. 

It  is  true  we  should  not  fear  to  question  the 
wisdom  of  our  fathers,  but  conclusions  they 
have  arrived  at  in  matters  of  government  after 
long  study,  observation,  and  actual  experience 
should  not  be  disregarded  unless  their  error  can 
be  clearly  demonstrated. 
94 


CHAPTER    VI 

THE  NECESSITY  OF  CONSTITUTIONAL 

LIMITATIONS   UPON   THE  POWERS  OF  THE 

GOVERNMENT.    BILLS  OF  RIGHTS 

IT  should  be  evident  that  the  division  and 
distribution  of  governmental  powers  among 
different  depositaries  will  not  alone  prevent  en- 
croachments by  the  governing  power  upon  the 
liberty  of  the  subject.  The  executive  depart- 
ment in  performing  only  executive  functions  can, 
in  the  absence  of  other  checks,  act  oppressively. 
The  legislative  department,  especially,  without 
exceeding  the  legislative  function,  can  in  many 
ways  and  in  excessive  degrees  oppress  the  indi- 
vidual by  unnecessary  restrictions  of  personal 
liberty,  by  unnecessary  exactions,  by  arbitrary 
discriminations.  The  theory  of  representative 
government  is  that  the  legislature  will  be  a  body 
of  men  who  will  regard  themselves  as  entrusted 
95 


CONCERNING  JUSTICE 
with  important  powers  to  be  exercised  deliber- 
ately and  wisely  for  the  welfare  of  the  whole 
commonwealth  and  not  for  any  one  or  more 
classes  or  interests,  —  who  will  regard  themselves 
not  as  mere  delegates  or  proxies,  but  as  repre- 
sentatives, like  the  directors  of  a  corporation,  to 
form  and  act  upon  their  own  judgment  after 
investigation  and  reflection.  Experience  has 
shown,  however,  that  members  of  the  legislature 
do  not  always  nor  generally  act  upon  that  theory. 
They  seem  to  be  inoculated  with  the  bacillus  of 
irrepressible  activity,  the  desire  continually  to 
be  proposing  new  laws,  new  restrictions,  new 
exactions.  If  the  laws  enacted  prove  difficult 
of  enforcement  by  reason  of  their  interference 
with  what  individuals  feel  to  be  their  rights, 
then  new  and  oppressive  methods  of  enforcement 
are  devised,  still  further  restricting  liberty  and 
equality.  I  have  seen  it  stated  that  in  the  first 
ten  days  of  the  session  of  the  Massachusetts 
legislature  this  present  year  over  a  thousand 
laws  were  proposed.  Further,  the  members  of 
96 


BILLS  OF  RIGHTS 
the  legislature  are  beset  by  constituents  and 
others  to  favor  legislative  measures  for  their  own 
special  benefit,  or  that  of  their  association,  or 
of  their  locality.  One  result  is  that  during  every 
legislative  session  the  ordinary  citizen  is  dread- 
ing oppressive  legislation  and  feels  relieved  when  / 
the  session  is  over. 

When  we  consider  the  wide,  almost  unlimited 
range  of  the  legislative  function,  and  the  power 
and  tendency  of  legislatures  to  push  that  func- 
tion to  the  extreme,  it  would  seem  that  some 
check  should  be  put  upon  the  legislature  to 
prevent  its  enacting  discriminatory  laws  or  other- 
wise depriving  the  individual  of  some  accustomed 
and  cherished  freedom  of  action.  If  it  be  said 
that  pubHc  opinion  is  suflScient  restraint,  the 
answer  is  that  in  a  democracy,  or  in  a  republic 
with  universal  suffrage,  the  efficient  public  opin- 
ion is  practically  that  of  the  majority  of  the 
electorate,  and  it  is  an  acknowledged  truism 
that  the  unrestrained  majority  is  even  more 
likely  than  the  few  to  be  oppressive  of  the  in-i 
97 


'^o. 


CONCERNING  JUSTICE 

dividual.  The  opinion  of  the  many  is  more 
variable  than  that  of  the  few,  more  likely  to  be 
swayed  by  sympathy,  prejudice,  and  other 
emotions.  Indeed,  pubhc  opinion  sometimes 
induces  legislatures  to  enact  laws  which  they 
themselves  feel  to  be  unwise  and  tyrannical. 

If  history  and  reason  show  that  the  happiness 
of  the  people  as  a  whole  requires  certain  indi- 
vidual Hberties  and  rights  to  be  left  undisturbed 
and  that  the  safety  of  the  people  as  a  whole  does 
not  require  the  contrary,  then  in  order  to  secure 
justice  those  possessing  the  powers  of  govern- 
ment should  be  restrained  from  any  acts  infrin- 
ging those  liberties  and  rights;  for,  as  already 
stated,  justice  consists  in  the  equilibrium  be- 
tween restrictions  necessary  for  the  welfare  of 
the  whole  people  without  discrimination,  and 
the  freedom  of  the  individual  to  serve  his  own 
welfare. 

I  think  there  are  such  liberties  and  rights. 

The  subjects  of  King  John  in  the  13th  century 

thought  so  and  compelled  the  king  to  guarantee 
98 


BILLS  OF  RIGHTS 
by  the  Magna  Charta  that  certain  specified 
rights  and  liberties  should  not  be  infringed. 
Again,  the  subjects  of  Charles  I  in  the  17th 
century  had  a  similar  conviction  and  expressed 
it  in  the  Petition  of  Right,  which  named  some 
liberties  and  rights  not  to  be  infringed.  The 
king  assented  to  that  much  limitation  of  the 
royal  power.  In  the  same  century,  upon  the  ac- 
cession of  William  and  Mary,  a  Bill  of  Rights 
was  framed  and  enacted  into  law  by  King  and 
Parliament,  naming  liberties  and  rights  of  the 
subject  which  ought  not  to  be  abridged.  Suc- 
ceeding Kings  and  ParUaments  seem  to  have 
respected  the  provisions  of  this  Bill  of  Rights  in 
their  legislation  for  British  subjects.  Had  they 
conceded  the  claim  of  the  people  of  the  American 
Colonies  that  they  also  were  protected  by  its 
provisions,  the  course  of  our  political  history 
might  have  been  different.  As  it  was,  however, 
the  British  government  practically  held  that 
neither  Magna  Charta,  the  Petition  of  Right,  nor 
the  Bill  of  Rights  restrained  it  in  its  dealings  with 
99 


CONCERNING  JUSTICE 

the  Colonies,  and  this  in  despite  of  the  protests 
of  some  of  its  most  eminent  statesmen.  The 
resolutions  of  the  various  Colonial  legislatures 
and  the  formal  Declaration  of  Independence 
recite  many  grievous  instances  of  arbitrary 
action  by  the  government  in  disregard  of  the 
doctrines  of  those  charters. 

So  bitter  was  their  experience  that,  when  the 
people  of  the  various  Colonies  came  to  frame 
constitutions  for  "a  government  of  the  people, 
by  the  people,  and  for  the  people"  independent 
of  the  British  crown  and  all  other  external  au- 
thority, they  very  generally  insisted  that  even 
such  a  government  should  have  its  powers 
defined  and  limited,  that  some  rights  of  the 
individual  should  be  specified  which  the  govern- 
ment should  not  infringe  nor  have  the  lawful 
power  to  infringe.  From  their  own  experience 
the  people  were  convinced  that  such  definitions 
and  limitations  were  necessary  for  the  security 
of  the  individual  even  under  a  popular  govern- 
ment. 

lOO 


BILLS  OF  RIGHTS 
The  first  step  of  the  representatives  of  the 
people  of  Virginia  toward  a  declaration  of  in- 
dependence of  the  British  crown,  and  the  setting 
up  an  independent  government,  was  the  adoption 
of  a  declaration  of  rights  in  the  individual  which 
no  government  should  infringe.  This  was 
adopted  and  promulgated  sometime  before  the 
constitution  proper  was  framed.  The  statement 
was  declared  to  be  necessary  in  order  that  the 
government  might  be  "effectually  secured  against 
maladministration."  Similar  limitations  upon 
the  powers  of  the  government  were  imposed  in 
the  early  constitutions  of  Massachusetts,  New 
Hampshire,  New  Jersey,  Delaware,  Pennsylvania, 
Maryland,  North  CaroHna,  and  South  CaroHna; 
also  in  the  first  constitution  of  Connecticut  in 
1818,  and  in  the  first  constitution  of  Rhode 
Island  in  1842.  The  people  of  New  Jersey  in 
1844  made  the  limitations  more  definite,  and  the 
people  of  Maryland  imposed  additional  limita- 
tions in  1864.  The  people  of  New  York  did 
not  in  their  first  constitution  of  1777  expressly 


CONCERNING  JUSTICE 
in  terms  guarantee  individual  rights,  but  they 
impliedly  did  so  by  making  the  Declaration  of 
Independence  the  preamble,  and  in  their  con- 
stitution of  1 82 1  they  incorporated  an  explicit 
statement  of  individual  rights  not  to  be  infringed. 
The  example  of  the  original  states  in  this  respect 
has  been  followed  by  most  of  the  subsequent 
states  of  the  Union. 

In  1778  a  convention  chosen  to  draft  a  consti- 
tution for  Massachusetts  submitted  a  draft  to 
the  people,  who  rejected  it  by  a  large  majority 
mainly  because  it  did  not  contain  a  "Bill  of 
Rights."  To  quote  from  Harry  A.  Gushing,  a 
writer  on  the  History  of  Commonwealth  Govern- 
ment in  Massachusetts,  "No  demand  was  more 
general  than  that  for  a  Bill  of  Rights  which 
should  embody  the  best  results  of  experience." 
In  1780  a  second  convention  submitted  another 
draft  of  a  constitution  containing  the  famous 
Massachusetts  Declaration  of  Rights,  and  this 
the  people  adopted  by  a  majority  of  more  than 
two  to  one.    The  only  objection  urged  against 


BILLS  OF  RIGHTS 

the  Declaration  of  Rights  was  that  it  did  not  go 
far  enough. 

In  the  convention  that  drafted  the  Federal 
Constitution  it  was  strongly  urged  that  a  Bill  of 
Rights  should  be  incorporated  in  the  draft,  but 
it  was  deemed,  by  the  majority  at  least,  un- 
necessary and  even  dangerous  to  make  a  specific 
declaration  of  individual  rights,  inasmuch  as  the 
federal  government  contemplated  was  in  its  very 
nature  limited  to  such  powers  as  were  expressly, 
or  by  necessary  implication,  conferred  by  the 
Constitution,  and  hence  to  specify  certain  things 
the  government  should  not  do  might  be  construed 
as  permitting  it  to  do  anything  not  so  specified. 
This  argument  prevailed  and  the  draft  submitted 
to  the  states  contained  no  Bill  of  Rights.  Im- 
mediately, however,  a  storm  of  objections  was 
raised  against  it  because  of  the  omission.  Despite 
the  arguments  of  Hamilton  and  Madison  that  a 
Bill  of  Rights  was  unnecessary,  ratification  was 
finally  obtained  only  by  a  general  assurance  and 

understanding  that  a  sufficient  Bill   of  Rights 
103 


CONCERNING  JUSTICE 

should  be  added  immediately  upon  the  organiza- 
tion of  the  new  government.  The  necessary 
amendments,  therefore,  were  submitted  at  the 
first  session  of  the  new  Congress  and  were  unani- 
mously adopted  by  the  states.  Other  limitations 
have  since  been  imposed,  notably  those  in  the 
XlVth  amendment,  assuring  to  every  citizen 
equal  consideration  in  legislation  by  the  states. 

By  the  Federal  Constitution  as  it  now  stands 
the  citizen,  in  time  of  peace  at  least,  is  guaranteed, 
among  other  matters,  the  protection  of  the  writ 
of  habeas  corpus;  freedom  from  bills  of  attainder 
and  ex  post  facto  legislation;  freedom  of  religious 
belief  and  worship;  freedom  of  thought  and  its 
expression;  freedom  peacefully  to  assemble  with 
others  and  petition  for  redress  of  grievances; 
freedom  from  unreasonable  searches  and  seizure; 
the  right  not  to  be  prosecuted  for  infamous 
crimes  except  first  accused  by  a  grand  Jury;  the 
right  in  all  criminal  prosecutions  to  a  speedy  and 
public  trial  by  an  impartial  jury,  to  be  confronted 

with   the   witnesses  against  him   and   to   have 
104 


BILLS  OF  RIGHTS 
assistance  of  counsel;  that  he  shall  not  be  de- 
prived of  life,  liberty,  or  property  without  due 
process  of  law;  that  his  private  property  shall 
not  be  taken  from  him  even  for  public  use  without 
just  compensation;  that  the  obKgations  accruing 
to  him  under  lawful  contracts  shall  not  be  im- 
paired; that  he  shall  not  be  denied  the  equal 
protection  of  the  laws.  The  guarantees  in  the  state 
constitutions  are  generally  of  the  same  nature. 

It  is  difficult  to  see  how  any  of  these  guaran- 
ties, or  such  other  guaranties  as  may  be  contained 
in  the  federal  and  state  constitutions,  prevent 
legislative  or  executive  action  necessary  for  the 
welfare  of  the  people  generally.  There  is  cer- 
tainly an  ample  field  for  such  action  without 
overstepping  these  boundaries.  Nevertheless,  it 
is  today  urged  by  some  impulsive  persons,  eager 
to  impose  their  theories  on  the  people  at  once, 
that  all  or  many  of  these  limitations  upon  the 
powers  of  government  should  be  removed  or  dis- 
regarded and  the  majority  of  the  people  allowed 
unrestricted  sway  in  all  matters  of  governmental 
105 


^ 

"^l. 


CONCERNING  JUSTICE 

action.  Others  who  do  not  go  so  far,  yet  urge 
that  the  majority  should  be  free  to  suspend  these 
guaranties  temporarily  or  in  some  particular 
classes  of  cases.  Against  this  opinion  I  submit 
that  after  so  many  centuries  of  experience  of  the 
tendency  of  all  governments  to  enlarge  their 
powers  over  the  subject,  and  of  struggles  to  limit 
the  powers  of  government  over  private  rights  and 
to  protect  the  individual  from  governmental  op- 
pression, the  burden  of  -evidence  and  of  argument 
is  heavily  on  those  who  would  now  advocate 
unlimited  powers  even  for  the  most  democratic 
government.  A  government  directly  by  the 
people  is  of  course  in  practice  a  government  by 
a  shifting  and  often  narrow  majority  of  the  people. 

P    It  is  not  yet  demonstrated  by  experience  or  reason 

that  such  a  government,  unlimited,  would  be  as 

I  regardful  of  individual  rights  or  welfare  as  a 

(     republican  form  of  government  with  its  checks 

and    balances    and    constitutional    restrictions. 

The  excesses  of  the  unlimited  democracies  of 

ancient  Greece  and  of  the  unrestrained  democ- 
io6 


BILLS  OF   RIGHTS 

racy  of  France  during  and  after  the  revolution 
of  1789  and  the  lynchings  in  this  country  do  not 
contribute  to  such  demonstration. 

It  is  not  those  who  defend  our  present  form  of 
government  with  its  constitutional  guaranties, 
who  resist  political  action  tending  to  weaken 
them,  that  should  be  called  unprogressive,  un- 
democratic, or  wanting  in  love  of  country.  Those 
of  our  ancestors,  English  and  American,  who 
fought  for  these  guaranties,  who  obtained  them 
only  after  years  of  strife,  who  incorporated  them 
in  our  federal  and  state  constitutions  and  safe- 
guarded them  against  the  varying  impulses  of 
the  populace,  were  not  unpatriotic  nor  unmind- 
ful of  the  welfare  of  the  people,  —  were  not 
indifferent  to  human  liberties  or  human  rights. 
Neither  are  they  such  who  today  strive  to  pre-  l 
serve  those  guaranties  won  at  such  expense  of  <»,  4! 
blood  and  treasure.  On  the  contrary,  it  is  those  .  >  ^/, 
who  would  override  these  guaranties  and  revert 
to  the  old  days  of  unlimited  governmental  power,  '^cj,    T 

that  are  the  reactionaries.  ^'\ 

107  n 


CONCERNING  JUSTICE 

It  may  be  admitted  that  some  of  these  limita- 
tions if  enforced  do  now  and  then  impede  and 
even  prevent  some  governmental  action  desired 
by  some  group  or  section  of  the  people,  but 
while  action  in  violation  of  these  limitations 
might  benefit  its  sponsors  it  would  necessarily 
be  at  the  expense  of  others.  Those  who  seek 
such  legislation  against  others  would  quickly 
appeal  to  these  limitations  if  legislation  were 
directed  against  themselves.  The  noisiest  de- 
claimers  against  these  guaranties  fall  back  for 
protection  upon  the  constitutional  guaranty  of 
freedom  of  speech.  So  long  as  these  barriers 
are  maintained  every  individual,  no  matter  how 
poor  and  feeble,  will  be,  theoretically  at  least, 
secure  in  some  rights  against  the  attacks  of  the 
many.  Without  such  barriers  every  individual 
is  at  the  mercy  of  an  inconstant  majority.  With- 
out such  barriers  justice  cannot  be  said  to  be 
secured.  Lord  Treasurer  Burleigh  of  Queen 
Elizabeth's    time  declared  that  England  could 

never  be  ruined  by  its  kings,  but  only  by  its 
io8 


BILLS  OF  RIGHTS 
Parliament.  If  the  safeguards  of  the  federal 
and  state  constitutions  are  maintained,  neither 
Congress  nor  the  state  legislatures  can  ruin 
America.  If  the  American  people  should  ever 
consent  to  the  removal  of  these  safeguards  they 
would  give  evidence  of  their  want  of  self-re- 
straint, of  their  umA-illingness  and  even  incapac- 
ity to  govern  themselves,  and  would  pave  the 
way  for  the  man  on  horseback  as  the  French 
Revolution  paved  the  way  for  Napoleon.  To 
deprive  a  single  one  of  his  rightful  hberty  is  to 
endanger  the  liberties  of  all. 


(^ 


109 


CHAPTER   VII 

THE    INTERPRETATION    AND    ENFORCEMENT 

OF  CONSTITUTIONAL  LIMITATIONS 

NECESSARILY  A  FUNCTION  OF 

THE  JUDICIARY 

UNDER  our  federal  and  state  form  of  gov- 
ernment the  question  naturally  arises 
where  should  be  lodged  the  power  to  determine 
whether  in  a  given  instance  either  department 
has  encroached  on  the  proper  field  of  any  other 
department,  and  whether  either  department 
has  encroached  on  the  constitutional  rights  of 
the  individual  citizen.  It  should  be  evident  that 
neither  the  executive  nor  the  legislative  depart- 
ment is  a  fit  depositary  of  such  power.  Both 
these,  from  the  nature  of  their  powers,  are  ag- 
gressive. They  act  of  their  own  voUtion.  They 
initiate  proceedings  and  measures  to  carry  out 
poUcies.     In  their  activities  they  are  apt,  con- 


A  FUNCTION  OF  THE  JUDICIARY 

sciously  or  unconsciously,  to  overstep  the  boundary 
lines  between  the  departments  and  also  the  hmits 
set  for  the  protection  of  the  citizen  against  such 
activities.  Again,  questions  may  and  often  do 
arise  between  the  government  and  the  individual 
citizen  that  are  not  pohtical  questions,  but  are 
questions  of  private  right,  the  right  of  the  indi- 
vidual against  the  government.  The  disputants 
are  the  individual  citizen  or  group  of  citizens 
on_the  one  hand,  and  the  government  on  the 
other  whether  that  government  be  a  monarchy, 
a  republican  or  representative  government,  or 
a  pure  democracy.  In  such  case  it  would 
seem  clear  that  one  party  should  not  have 
the  power  to  decide  the  question.  It  is  an 
axiom  that  neither  party  to  a  controversy 
should  be  the  judge  in  the  matter.  The  legis- 
lature that  enacts  a  statute  claimed  by  a  citizen 
to  be  beyond  its  powers  and  to  deprive  him  of 
some  right  guaranteed  to  him  by  the  constitution, 
should  not  be  the  judge  of  the  question  any  more 
than   should   the   complaining   citizen.     So   the 


CONCERNING  JUSTICE 
executive  should  not  be  the  judge  where  a  citizen 
claims  it  has  exceeded  its  powers  to  the  detriment 
of  his  constitutional  or  statutory  rights.    Even 
if  a  statute  be  enacted  or  ratified  by  the  people 
directly,  under  the  modem  initiative  and  refer- 
endum, and  a  citizen  claims  that  the  statute 
deprives  him  of  some  right  guaranteed  by  the 
constitution,  the  people  should  not  be  the  judge; 
much  less  should  a  majority.    If  the  individual 
is  left  to  be  the  judge  of  his  constitutional  or 
legal  right  as  against  the  government,  the  result 
would   be   anarchy.    If   the   government,   even 
the  most  popular  government,  is  to  be  the  judge, 
the  result  would  often  be  tyranny.    There  would 
be  occasions,  as  there  have  been,  when  an  excited 
people  or  majority   would   tyrannize  over   the 
individual,  indeed  over  the  minority.    To  secure 
alike  the  people  against  anarchy  and  the  individ- 
ual against  tyranny,  power  must  be  vested  in 
some  impartial,  independent  arbiter  to  determine 
authoritatively  and  finally  the  relative  rights  and 
duties  of  each  under  the  constitution. 


A  FUNCTION  OF  THE  JUDICIARY 
The  proper  department  to  be  made  the  depos- 
itary of  this  important  power  would  seem  to  be 
the   judicial.    That    department   does   not   ini- 
tiate, has  no  pohcies,  does  not  act  of  its  own     7 


''^"''■'""*'"- ir-ii--nnr"T^"'" 


volition,  but  acts  only  when  its  action  is  regularly 
invoked  in  some  controversy  and  then  only  to 

^         ^        .,.,    iin_jiii I lull  III  I    H iiriiji.  . i v-.^^<'-«a.' 

end  that  controversy.  It  may  seem  unnecessary 
even  to  state,  much  less  defend,  the  proposition, 
but  as  its  logical  result  is  that  the  judiciary 
when  invoked  by  the  individual  must  refuse 
effect,  so  far  as  he  is  concerned,  to  a  legislative 
act  which  deprives  him  of  some  right  guaranteed 
by  the  constitution,  and  must  thus  disappoint 
those  who  procured  the  passage  of  the  act,  the 
proposition  has  been,  is  still  being,  denied. 
The  action  of  the  courts  in  exercising  that  power 
has  been  and  is  even  now  denounced  as  usurpa- 
tion. Though  the  proposition  is  now  long  estab- 
lished, these  attacks  justify  some  repetition 
of  the  argument  in  its  support.  The  logic  of 
Chief  Justice  Marshall  in  Marbury  v.  Madison,  i 
Cranch  137  at  p.  176,  seems  to  me  irresistible  and 
113 


CONCERNING  JUSTICE 

worthy  of  frequent  quotation  despite  the  attacks 
upon  it.  The  Chief  Justice  said:  "This  original 
and  supreme  will  (of  a  people)  organizes  the  gov- 
ernment and  assigns  to  different  departments 
their  respective  powers.  It  may  either  stop  here, 
or  establish  certain  limits  not  to  be  transcended 
by  those  departments.  .  .  .  The  government 
of  the  United  States  is  of  the  latter  description. 
The  powers  of  the  legislature  are  defined  and 
limited;  and  that  those  limits  may  not  be  mis- 
taken or  forgotten,  the  Constitution  is  written. 
To  what  purpose  are  powers  limited  and  to  what 
purpose  is  that  limitation  committed  to  writing 
if  these  limits  may  at  any  time  be  passed  by  those 
intended  to  be  restrained?  The  distinction  be- 
tween a  government  with  limited  and  unlimited 
powers  is  abolished  if  those  limits  do  not  confine 
the  persons  on  whom  they  are  imposed,  and  if 
acts  prohibited  and  acts  allowed  are  of  equal 
obligation.  It  is  a  proposition  too  plain  to  be 
contested,  either  that  the  Constitution  controls 
any  legislative  act  repugnant  to  it,  or  that  the 
114 


A  FUNCTION  OF  THE  JUDICIARY 

legislature  may  alter  the  Constitution  by  an 
ordinary  act.  Between  these  alternatives  there 
is  no  middle  ground.  The  Constitution  is  either 
a  superior,  paramount  law  unchangeable  by 
ordinary  means,  or  it  is  on  a  level  with  ordinary 
legislative  acts,  and,  like  other  acts,  is  alterable 
when  the  legislature  shall  please  to  alter  it.  .  .  . 
Certainly  all  those  who  have  framed  written 
constitutions  contemplate  them  as  forming  the 
fundamental  and  paramount  law  of  the  nation, 
and  consequently  the  theory  of  every  such 
government  must  be  that  an  act  of  the 
legislature  repugnant  to  the  Constitution  is 
void." 

In  1825  that  eminent  jurist.  Chief  Justice 
Gibson  of  Pennsylvania,  in  a  dissenting  opinion 
in  Eakin  v.  Raub,  12  S.  b'  R.  330,  insisted  in  an 
able,  elaborate,  and  exhaustive  argument  that 
while  the  judiciary  was  bound  to  refuse  effect  to 
a  state  statute  in  conflict  with  the  Federal  Consti- 
tution, it  was  bound  to  give  it  effect  if  repugnant 
only  to  the  state  constitution.  He  frankly  ad- 
115 


CONCERNING  JUSTICE 

mitted  the  logical  conclusion  that  in  such  case 
the  only  remedy  the  citizen  had  to  enforce  his 

!  constitutional    rights    was    that    of    revolution. 

;  When,  however,  his  opinion  in  Eakin  v.  Raub  was 
cited  in  1845  in  argument  in  N orris  v.  Clymer, 
2  Pa.  St.  277,  he  said  he  had  changed  his  opinion 
on  that  question,  partly  "  from  experience  of  the 
necessity  of  the  case."  In  the  later  case,  De 
Chastellux  v.  Fair  child,  15  Pa.  St.  18,  he  was 
emphatic  in  his  declaration  of  the  power  and  duty 
of  the  court  to  refuse  effect  to  a  state  statute 
in  conflict  with  the  state  constitution.  In  de- 
livering the  opinion  of  the  court  he  used  this 
vigorous  language:  "It  is  idle  to  say  the  author- 
ity of  each  branch  (of  the  government)  is  defined 
and  limited  in  the  constitution,  if  there  be  not  an 
independent  power  able  and  willing  to  enforce 
the  limitations.  .  .  .  From  its  very  position  it 
is  apparent  that  the  conservative  power  is  lodged 
with  the  judiciary,  which  in  the  exercise  of  its 
undoubted  right  is  bound  to  meet  every  emer- 
gency." 

116 


A  FUNCTION  OF  THE  JUDICIARY 

The  results  of  the  contrary  doctrine  are  well 
stated  by  the  same  court  in  Perkins  v.  Philadel- 
phia, 156  Pa.  St.  554.  ''If  laws  in  conflict  with 
the  constitution  be  passed  by  the  legislature, 
approved  by  the  governor  and  sustained  by  the 
court,  that  is  revolution.  It  is  no  less  revolution 
because  accomphshed  without  great  violence. 
It  matters  little  to  the  house  owner  whether  the 
structure  built  to  shelter  him  be  blown  up  by 
dynamite,  or  the  foundation  be  pried  out  stone 
by  stone  with  a  crowbar.  In  either  case  he  is 
houseless." 

One  desirable  result  of  this  doctrine  that  the 

courts  when  regularly  invoked  can  and  should 

refuse  effect  to  an   unconstitutional  statute  is 

that  it  ensures  to  every  person,  not  in  the  mili-   j 

tary  or  naval  service,  the  right  to  test  in  the  : 

judicial  courts  the  authority  of  any  official  to 

interfere  with  his  person,  liberty,  or  property, 

whatever  authority,  executive  or  legislative,  the. 

official  may  plead.     In  France  and  other  coun-j 

tries  of  continental  Europe  questions  of  the  ex- 
117 


[Jml 


CONCERNING  JUSTICE 

istence  and  extent  of  the  authority  of  an  official 
in  his  action  against  individuals  are  triable,  at 
least  at  the  pleasure  of  the  executive,  only  in 
administrative  tribunals,  that  is,  courts  pertain- 
ing to  the  executive  department  and  instituted 
to  assist  that  department  in  the  performance  of 
its  functions.    The  aggrieved  individual  can  only 
apply  to  the  superiors  of  the  official  complained 
of.    Such  tribunals  naturally  inchne  to  uphold  the 
authority  claimed,  and  indeed  can  lawfully  allow 
the  plea  that  the  act  complained  of  was  ordered 
in  pursuance  of  some  executive  policy.    A  recent 
instance  is  that   unhappy  affair  at  Zabem  in 
Alsace  where  an  army  officer  in  time  of  peace 
wantonly  struck  and  wounded  a  peaceful  crippled 
citizen  with  his  sabre.    The  victim  could  only 
appeal  to  the  officer's  military  superiors,  who 
acquitted  the  offender  on  the  ground  that  the 
dignity  of  the  military  must  be  protected.    In 
the  United  Kingdom,  while  at  present,  as  for  cen- 
urics,  the  indi\idual  can  appeal  to  the  judicial 
courts  against  officials  acting  under  any  execu- 
ii8 


A  FUNCTION  OF  THE  JUDICIARY 

tive  or  legislative  orders,  Parliament,  and  even 
a  majority  of  the  House  of  Commons,  can  at  any 
time  deprive  him  of  that  right.  In  this  country 
the  executive  and  legislative  departments  com- 
bined have  no  such  power.  So  long  as  our 
present  system  is  maintained,  questions  between 
government  officials  and  individuals  must  re- 
main cognizable  by  the  judicial  courts  where 
the  private  citizen  is  on  a  par  with  the  highest 
official,  and  the  single  individual  is  on  a  par  with 
the  government  itself.  In  contrast  to  the  Zabern 
affair  we  may  note  that  the  striking  copper  miners 
of  Michigan  were  not  obliged  to  apply  to  higher 
military  officials  for  redress  of  wrongs  claimed  to 
have  been  inflicted  upon  them  by  the  military. 
They  were  free  to  apply,  and  did  apply,  to  tribu- 
nals outside  of  and  independent  of  the  executive. 
They  and  such  as  they  should  be  the  most  un- 
willing to  degrade  the  courts  or  lessen  their  power. 
A  similar  instance  is  that  of  the  striking  miners 
in  Colorado  who  so  loudly  complained  of  the  acts 

of  the  militia.    They  were  not  obliged  to  appeal 
iig 


CONCERNING  JUSTICE 
to  military  or  executive  oflScers  for  redress.    The 
Judicial  Courts  were  as  open  to  them  as  to  any 
others  and  there  they  would  be  upon  an  equahty 
with  the  officials. 

{{n^^   vtxAA    bu^    J'1/Sai 


120 


CHAPTER   VIII 

AN  INDEPENDENT  AND  IMPARTIAL 
JUDICIARY    ESSENTIAL    FOR    JUSTICE 

FOR  the  judiciary  to  be  in  fact,  as  well  as  in 
theory,  the  protector  of  the  constitutional 
rights  of  the  individual  against  the  government, 
and  of  the  legal  rights  of  the  individual  against 
the  aggressions  of  others,  it  should  be  made  so 
far  as  possible  free,  impartial  and  independent. 
The  judges  should  have  such  security  of  tenure, 
and  such  security  and  HberaUty  of  maintenance, 
that  they  will  have  no  occasion  nor  disposition 
to  court  the  favor,  or  fear  the  disfavor,  of  any 
individual  or  class  however  powerful  or  numer- 
ous, not  even  the  government  itself.  They 
should  be  made  free  to  consider  only  what  is  the 
truth  as  to  the  existing  law  or  fact  in  question, 
uninfluenced  by  any  suggestions  of  what  is 
demanded  by  prince,  people,  or  individual,  or  by 


CONCERNING  JUSTICE 

any  suggestion  of  consequent  good  or  evil  to 
themselves.  This  proposition  to  my  mind  is  so 
self-evident  that  quotations  from  eminent  philos- 
ophers cannot  strengthen  it. 

The  necessity  of  some  independent  tribunal 
between  the  governors  and  the  governed  was 
recognized  in  republican  Rome,  where  it  was 
provided  that  the  persons  of  the  tribunes  should 
be  inviolate,  an  immunity  not  granted  to  any 
other  officials.  The  medieval  cities  of  Italy 
frequently  selected  their  judges  from  some  other 
city  that  they  might  be  free  from  any  connec- 
tion with  different  local  factions  or  interests. 
When,  however,  the  empire  supplanted  the 
republic  in  Rome,  and  the  free  cities  of  Italy 
were  made  subject  to  despotic  domination,  the 
independence  of  these  tribunals  was  lost.  History 
shows  that  those  possessing  the  governmental 
power  have  always  been  unwiUing  to  maintain 
an  independent  judiciary.  The  only  countries 
today  possessing  a  judiciary  with  any  considerable 
degree  of  independence  are  the  United  Kingdom 

122 


AN  INDEPENDENT  JUDICIARY 

and  some  of  its  "Dominions  beyond  the  seas" 
and  our  own  country.  The  need  of  it  was  seen 
in  the  experience  of  the  people  of  England  and 
of  the  English  Colonies  in  America  under  a 
judiciary  liable  to  be  deprived  of  office  or  salary 
if  its  opinions  were  displeasing  to  the  crown. 

Charles  I  assented  to  the  Petition  of  Right 
and  promised  to  observe  it,  but  no  provision  was 
made  for  any  tribunal  independent  of  the  king 
to  determine  whether  his  acts  were  in  violation 
of  any  article  of  the  Petition.  Consequently, 
when  afterward  in  the  matter  of  the  tonnage  and 
poundage  tax  ParKament  remonstrated  against 
the  imposition  of  the  tax  as  a  violation  of  the 
royal  promise  in  assenting  to  the  Petition  of 
Right,  the  king  abruptly  ended  the  session  and 
in  his  speech  of  prorogation  denied  the  right  of 
Parliament  to  interpret  the  Petition  and  asserted 
that  it  was  for  him  alone  to  determine  "the  true 
intent  thereof."  Again,  the  legality  of  the 
imposition  by  the  king  of  the  "ship  money" 

tax    without    the    consent    of    Parliament    was 
123 


CONCERNING  JUSTICE 
hopelessly  questioned.  The  king  procured  from 
the  judges  an  opinion  that  he  could  lawfully 
impose  such  a  tax  without  awaiting  the  assent 
of  Parliament,  when  necessary  for  the  defense  of 
the  kingdom,  and  that  he  was  the  judge  of  the 
necessity  and  proper  amount  of  the  tax.  But 
this  was  not  the  opinion  of  an  independent 
judiciary.  The  judges  at  that  time  could  be 
promoted,  removed,  or  "recalled"  at  any  time 
at  the  king's  sole  pleasure,  and  they  well  knew 
the  king's  obstinate  insistence  in  the  matter. 
Their  opinion  simply  gave  expression  to  the 
king's  will,  and  hence  inspired  no  respect. 

Finally,  for  want  of  an  independent  tribunal 
empowered  to  determine  authoritatively  between 
king  and  subject  "  the  true  intent "  of  the_  Petition 
of  Right,  the  legal  extent  and  limitation  of  the 
royal  power,  the  lawfulness  of  its  exercise  upon 
the  subject  in  a  given  case,  the  issues  between 
them  had  to  be  submitted  to  the  arbitrament  of 
civil  war,  with  the  result  that  the  monarchical 
system  of  government  was  overthrown.  Its 
124 


AN  INDEPENDENT  JUDICIARY 
successor,  an  unchecked  parliament,  was  no  less 
arbitrary  in  many  of  its  acts,  and  was  in  turn 
overthrown  and  the  monarchy  restored.  The 
restored  dynasty,  however,  obeying  the  impulse 
of  all  possessors  of  governmental  powers,  soon 
began  again  to  claim  and  exercise  autocratic 
power,  to  encroach  upon  the  rights  and  liberties 
thought  to  have  been  secured  to  the  subject  by 
the  royal  assent  to  the  Petition  of  Right  and 
vindicated  by  successful  resistance,  and  also  to 
suspend  the  operation  of  the  laws  at  his  pleasure. 
Unfortunately  again  there  was  as  yet  no  impartial, 
independent  tribunal  in  England  to  determine 
authoritatively  the  line  between  the  royal  power 
and  the  specified  rights  of  the  subject.  The 
judges  were  still  removable  at  the  king's  sole 
pleasure.  James  II  did  not  hesitate  to  use  this 
power  to  obtain  such  opinions  and  decisions  as 
he  desired.  Preparatory  to  the  trial  of  the  Quo 
Warranto  case  against  the  City  of  London  to 
procure  the  forfeiture  of  its  charter,  the  king 
removed  Chief  Justice  Pemberton  and  appointed 
125 


CONCERNING  JUSTICE 

in  his  place  the  servile  Saunders  who  had  drawn 
the  writ  in  the  case  and  had  conducted  all  the 
proceedings  in  behalf  of  the  crown  as  its  counsel 
to  the  stage  where  the  case  was  ready  for  argu- 
ment in  the  Court  of  King's  Bench.  The  case  of 
the  city  was  thereby  made  hopeless  and  the  city 
itself  helpless.  In  the  case  of  the  "Seven  Bish- 
ops," prosecuted  for  hbel  in  presenting  to  the 
king  a  petition  for  him  to  recall  his  order  for  the 
reading  in  the  churches  his  Declaration  of  In- 
dulgence, he  seems  to  have  felt  tolerably  sure  of 
the  court  as  it  was  already  constituted.  Two 
able  and  learned  justices,  however,  HoUoway  and 
Powell,  ventured  the  opinion  that  the  petition 
was  not  libelous.  They  were  both  promptly 
"recalled." 

Again  force  had  to  be  used  to  free  the  subject 
and  maintain  his  "rights  and  liberties"  against 
the  sovereign.  James  II  was  driven  from  the 
country  and  William  of  Orange  called  to  the 
throne.    This  time  the  people  in  settling  the  new 

government  through  parliamentary  action  went 
126 


AN  INDEPENDENT  JUDICIARY 
farther  than  before  in  the  way  of  restraint  upon 
the  government  and  took  the  necessary  step  to 
secure  their  rights  and  liberties.  In  a  new 
instrument,  this  time  called  a  Declaration  instead 
of  a  Petition,  they  reiterated  the  rights  of  the 
subject  as  twice  before  they  had  been  formally 
asserted  in  the  Magna  Charta  and  the  Petition 
of  Right.  This  instrument,  known  as  the 
Declaration  of  Rights  of  1688,  was  presented  to 
WiUiam  and  Mary,  who  solemnly  engaged  to 
observe  and  maintain  its  provisions.  Further 
still  (and  this  was  the  new  and  effective  guaranty 
of  the  subject's  rights),  in  the  Act  for  the  settle- 
ment of  the  crown  it  was  enacted  by  king,  lords, 
and  commons  that  thereafter  the  judicial  tenure 
of  the  judges  of  the  courts  should  be  during  good 
behavior.  Since  that  time  for  more  than  two 
centuries  "the  true  intent"  of  the  laws  has  been 
determined,  not  by  king  or  parHament  or  people, 
but  by  a  judiciary  made  strong  and  independent. 
There  has  been  no  need  to  resort  to  force  to  defend 
the  legal  rights  of  the  subject. 
127 


CONCERNING  JUSTICE 

But  this  security  for  individual  rights  and 
Hberties  was  not  extended  to  British  subjects  in 
America.  After  the  Colonies  had  so  increased 
in  population  and  wealth  that  they  were  deemed 
worth  exploitation,  the  government,  among  other 
means  of  controlHng  them,  took  over  the  ap- 
pointment of  their  judges,  in  many  instances  with 
a  tenure  during  the  government's  pleasure  only. 
In  the  circular  letter  of  Massachusetts  Bay 
Colony  to  the  other  Colonies  in  1768  they  are 
asked  to  consider  whether  for  the  judges  of  the 
land  not  to  hold  their  commissions  during  good 
behavior  and  to  have  their  salaries  appointed  for 
them  by  the  crown  did  not  have  a  tendency  to 
"endanger  the  happiness  and  security  of  the 
subjects."  One  of  the  counts  in  the  indictment 
of  July  4,  1776,  against  the  king's  government 
was  that  it  hud  made  the  colonial  judges  depen- 
dent on  the  king's  will  alone  for  the  tenure  of 
their  offices  and  the  amount  and  payment  of 
their  salaries. 

As  a  consequence  of  this  experience  with  a 
128 


AN  INDEPENDENT  JUDICIARY 
judiciary  dependent  on  the  governing  power  for 
the  tenure  and  maintenance  of  its  judges,  the 
Colonies  when  they  set  up  independent  govern- 
ments of  their  own  provided  a  fixed  tenure  for 
their  judges  in  every  instance  but  one.  Con- 
necticut in  its  first  constitution  made  the  tenure 
during  good  behavior,  as  did  Delaware,  Mary- 
land, Massachusetts,  New  Hampshire,  North 
Carolina,  South  CaroUna,  and  Virginia.  Penn- 
sylvania at  first  fixed  the  tenure  at  seven  years, 
but  in  1790  changed  it  to  good  behavior.  The 
same  tenure  was  fixed  for  the  federal  judges  in 
the  Federal  Constitution.  In  some  instances 
also,  further  provision  was  made  for  the  inde- 
pendence of  the  judges  by  forbidding  the  dimin- 
ishing of  their  salaries  during  their  term  of  office. 
The  people  of  Massachusetts,  which  had  been 
the  most  harried  of  the  Colonies,  declared  em- 
phatically the  necessity  for  an  independent 
judiciary.  Article  XXIX  of  the  Massachusetts 
Declaration  of  Rights  adopted  in  1780  is  as 
foUows:  "It  is  essential  to  the  preservation  of 
129 


CONCERNING  JUSTICE 

every  individual,  his  life,  liberty  and  property 
and  character  that  there  be  an  impartial  inter- 
pretation of  the  laws,  and  administration  of 
justice.  It  is  the  right  of  every  citizen  to  be 
tried  by  judges  as  free,  impartial  and  independent 
as  the  lot  of  humanity  will  admit.  It  is,  therefore, 
not  only  the  best  policy  but  for  the  security  of 
the  rights  of  the  people  and  of  every  citizen  that 
the  judges  of  the  supreme  judicial  court  should 
hold  their  offices  so  long  as  they  behave  them- 
selves well;  and  that  they  should  have  honorable 
salaries  ascertained  and  estabhshed  by  standing 
laws."  New  Hampshire,  with  a  similar  ex- 
perience, adopted  the  same  language  in  Art, 
XXXV  of  her  Bill  of  Rights.  The  Maryland 
Declaration  of  Rights  of  1776  contains  this 
article:  "Art.  XXX.  That  the  independency 
and  uprightness  of  the  judges  are  essential  to 
the  impartial  administration  of  justice  and  a 
great  security  to  the  rights  and  liberties  of  the 
people;  wherefore  the  chancellor  and  judges 
ought  to  hold  commissions  during  good  behavior." 
130 


AN  INDEPENDENT  JUDICIARY 
It  is  true  that  in  most  of  the  states  the  official 
tenure  of  the  judges  has  since  been  reduced  to  a 
more  or  less  brief  term  of  years.  This  fact  is 
only  another  instance  of  the  tendency  of  the 
governing  power  to  lower  if  not  remove  all 
barriers  set  up  against  it  for  the  protection  of 
the  individual.  Majorities  as  well  as  absolute 
kings  like  their  own  way.  The  change  where 
made  may  have  given  majorities  greater  freedom 
to  enforce  their  will  upon  individuals,  but  it 
has  not  increased  confidence  in  the  integrity  of 
the  judges  nor  made  them  more  firm  to  ascertain 
and  declare  only  the  truth. 

It  is  true  also  that  in  most  states  now  the 
people  have  taken  to  themselves  directly  the 
task  of  selecting  men  suitable  for  judges  instead 
of  entrusting  that  important  duty  to  the  governor 
or  legislature,  as  was  the  practice  in  the  early 
days  of  the  republic.  I  cannot  think  this  has 
tended  to  secure  better  judges,  though  it  may 
have  secured  judges  more  subservient  to  ma- 
jorities. Effectually  to  guard  the  constitutional 
131 


CONCERNING  JUSTICE 
and  legal  rights  of  all  alike,  the  judges  should 
possess  what  is  called  the  legal  mind  and  the 
/     judicial  temperament.    They  should  be  able  and 
(        learned  that  they  may  appreciate  the  real  mean- 
\       ing,  purpose,  and  scope  of  the  constitution  and 
\      statutes;  calm  and  equable  in  temperament  that 
\    they  may  not  be  influenced  by  sympathy,  pre- 
■    judice,  or  other  emotions;   strong  and  courageous 
in  character  that  they  may  resist  all  pressure 
'■    other   than  fair  argument.    To   find   the   men 
possessing  these  qualities  requires  extensive  and 
protracted    inquiry  and    patient    consideration, 
such  as  are  not  and  cannot  be  exercised  by  the 
people   directly.     The  task   should  be  deputed 
in  the  first  instance  to  the  head  of  the  state, 
the   chief   executive.     He  has  the  best  means 
of    ascertaining    who    possesses    the    requisite 
qualifications  in  the  greatest  degree.     He  would 
feel     that    he    alone    was     responsible    for    a 
proper  selection,  and  that  feeling  of  responsi- 
bility would  tend  to  make  him  deliberate  and 
painstaking  in  liis  choice.    On  the  other  hand, 
132 


AN  INDEPENDENT  JUDICIARY 
if  the  original  selection  be  entrusted  to  the 
legislature  or  left  with  the  people  acting  directly, 
individual  members  would  have  a  much  lower 
sense  of  personal  responsibility  and  the  individual 
members  of  the  electorate  scarcely  any  at  all. 
True,  in  those  states  where  the  judges  are  elected 
by  the  people  directly,  excellent  judges  are  often 
and  perhaps  ordinarily  chosen,  but  I  think  I 
state  a  truth  in  stating  that  upon  the  whole 
those  courts  composed  of  judges  with  a  long 
tenure  and  appointed  by  the  executive  stand 
higher  in  public  estimation  and  their  opinions 
have  greater  weight.  Such  courts  are  certainly 
a  greater  protection  to  those  guilty  of  no  wrong, 
but  who  have  been  so  unfortunate  as  to  incur 
the  displeasure  of  an  excited  community. 

Nevertheless,  despite  the  lessons  of  history 
and  the  reasons  contra,  it  is  proposed  in  this 
twentieth  century  that  the  tenure  of  the  judges 
shall  again  be  during  pleasure  only,  —  this  time 
during  the  pleasure  of  the  majority  of  the  elec- 
torate. The  proposition  is  not  stated  so  baldly 
133 


CONCERNING  JUSTICE 

by  its  proposers.  They  phrase  it_  as J:he  right 
of  the  people  to  remove  or  recall  unsatisfactory 
pubHc  servants,  whether  judges,  or  governors,  or 
other  oflScials.  They  propose  that  at  the  request 
of  a  certain  small  percentage  of  the  electorate, 
setting  forth  their  dissatisfaction  with  a  judge, 
he  may  be  removed  by  a  majority  of  the  voters. 
As  precedents  for  their  proposal  they  point 
triumphantly  to  the  provision  of  the  British 
Act  of  Settlement  that  judges  should  be  re- 
movable by  the  crown  upon  the  request  of  both 
Houses  of  Parliament,  and  to  similar  provisions 
in  many  of  our  state  constitutions. 

Of  course,  there  should  be  lodged  somewhere 
the  power  to  remove  judges  proven  to  be  un- 
worthy of  their  high  office,  or  incapable  of  per- 
forming its  high  duties,  but  it  should  be  lodged 
in  a  body  of  men  before  whom  the  accused  judge 
can  appear  in  person  or  by  counsel,  hear  the 
complaints  and  face  the  witnesses  against  him, 
and  adduce  evidence  and  argument  in  reply,  — 
and  who  can  on  their  part  see  the  witnesses  and 
134 


AN  INDEPENDENT  JUDICIARY 
hear  the  arguments  before  deciding.  That  was 
the  opinion  of  the  British  ParHament  in  the  few 
cases  presented  to  them,  and  the  state  legislatures 
in  this  country  have  generally  entertained  the 
same  opinion.  It  was  also  held  by  ParHament 
that  the  address  for  removal  should  state  the 
reasons  therefor.  In  1855  Governor  Gardner  of 
Massachusetts  declined  to  remove  a  judge  of 
probate  on  address  by  the  legislature  because 
no  sufficient  grounds  were  stated  in  the  address. 
He  said  that  in  every  instance  then  on  record  full 
reasons  for  removal  had  accompanied  the  address. 
The  constitutional  provision  for  removal  by 
address  evidently  was  not  designed  to  lessen  the 
impartiahty  and  independence  of  the  judge  by 
subjecting  him  to  removal  at  the  mere  will  of  the 
executive  and  legislature,  but  that  he  might  be 
removed  for  corruption,  neglect  of  duty,  incapac- 
ity, immorality,  or  other  disgraceful  conduct, 
after  notice,  hearing,  and  deliberation.  For  the 
executive  and  legislature,  or  even  the  majority 
of  the  people,  to  remove  a  judge  because  they 
13s 


CONCERNING  JUSTICE 

do  not  like  his  opinions  as  to  what  the  constitu- 
tion requires  or  forbids  them  to  do,  would  destroy 
the  independence  of  the  judges  and  thus  deprive 
the  citizen  of  all  security  for  his  rights  and 
Uberties  under  the  constitution, — would  be 
despotism. 

The  principal  argument  for  lessening  the  in- 
dependence of  the  judges  and  making  them  more 
subservient  to  the  inconstant  majority  seems  to 
be  that  otherwise  the  judges  will  misuse  their 
power  and  impede  the  operation  of  statutes  they 
do  not  themselves  approve  of.  The  argument 
has  little  or  no  foundation  in  fact.  Perhaps 
among  the  hundreds,  if  not  thousands,  of  cases 
of  holding  a  statute  unconstitutional  a  few  may 
seem  to  have  been  so  decided  because  the  judges 
thought  them  unwise  and  oppressive.  Some  ex- 
pressions in  judicial  opinions  have  been  unfor- 
tunate in  that  respect,  but  the  courts  everywhere 
in  this  country,  now  if  not  at  first,  disclaim  any 
such  power.  The  same  Chief  Justice  Marshall, 
who  had  so  convincingly  stated  the  duty  of  the 
136 


AN  INDEPENDENT  JUDICIARY 
judiciary  to  refuse  effect  to  unconstitutional 
statutes,  later  in  McCulloch  v.  Maryland,  4  Wheat. 
316,  disclaimed  for  the  courts  all  pretensions  to 
any  power  to  inquire  into  the  necessity  of  any 
statute,  or  in  any  way  to  interfere  with  the  discre- 
tion of  the  legislature.  In  strong  and  explicit 
language  other  courts  have  disclaimed  such  pre- 
tensions. The  Minnesota  court  in  State  v.  Cor- 
bett,  57  Minn.  345,  held  that  courts  were  not 
at  liberty  to  declare  a  statute  unconstitutional 
because  it  is  thought  by  them  to  be  unjust  or 
oppressive,  or  to  violate  some  natural,  social,  or 
political  right  of  the  citizen,  unless  it  can  be  shown 
that  such  injustice  is  prohibited,  or  such  rights 
protected,  by  the  constitution.  The  Pennsyl- 
vania court  in  Com.  v.  Moir,  199  Pa.  St.  534,  used 
this  language:  "Much  of  the  argument  and 
nearly  all  the  specific  objections  advanced  are 
to  the  wisdom  and  propriety  and  to  the  justice 
of  the  statute  and  the  motives  supposed  to  have 
inspired  its  passage.  With  these  we  have  nothing 
to  do.  They  are  beyond  our  province  and  are 
137 


CONCERNING  JUSTICE 

considerations  to  be  adduced  solely  to  the  legis- 
lature." The  court  of  West  Virginia  in  Slack  v. 
Jacob,  8  W.  Va.  612,  said:  "That  the  judges  are 
convinced  that  a  statute  is  contrary  to  natural 
right,  absolute  justice,  or  sound  morality  does 
not  authorize  them  to  refuse  it  effect."  The 
court  of  Washington  in  Fishing  Co.  v.  George,  28 
Wash.  200,  held  that  "a  statute  cannot  be  ignored 
by  the  courts  because  leading  in  its  application 
to  absurd,  incongruous,  or  mischievous  results." 
A  few  cases  may  also  be  cited  showing  how  re- 
lentlessly this  disclaimer  is  applied.  The  court 
of  .New  York  in  Kittinger  v,  Buffalo  Traction 
Co.,  160  N.  Y.  377,  held  that  the  courts  had  no 
power  to  inquire  into  the  motives  inducing  legis- 
lation and  could  not  impute  to  the  legislature 
any  other  than  public  motives.  The  Pennsyl- 
vania court  in  Sunhury  R.R.  Co.  v.  People,  2,Z 
Pa.  St.  278,  had  urged  upon  it  the  argument  that 
the  statute  in  question  had  been  "passed  in  fraud 
of  the  rights  of  the  people."  The  court  held 
that,  if  true,  that  fact  would  not  authorize  it  to 
138 


AN  INDEPENDENT  JUDICIARY 
refuse  it  effect.  The  Tennessee  court  in  Lynn 
V.  Polk,  76  Tenn.  St.  121,  was  asked  to  declare 
a  statute  ineffective  because  its  enactment  was 
procured  by  bribing  members  of  the  legislature. 
The  court  held  it  could  not  do  so.  The  Missouri 
court  in  State  v.  Clarke,  54  Mo.  17,  had  before  it 
a  statute  authorizing  the  licensing  of  bawdy 
houses  and  was  urged  to  declare  it  unconstitu- 
tional because  against  public  policy  and  destruc- 
tive of  good  morals.  The  court  held  it  had  no 
such  power.  The  Justices  of  the  Maine  Supreme 
Court  in  an  opinion  reported  in  103  Maine  508 
stated  the  principle  as  follows:  "It  is  for  the 
legislature  to  determine  from  time  to  time  the 
occasion  and  what  laws  are  necessary  or  expedi- 
ent for  the  defense  and  benefit  of  the  people; 
and  however  inconvenienced,  restricted,  or  even 
damaged  particular  persons  and  corporations 
may  be,  such  general  laws  are  to  be  held  valid 
unless  there  can  be  pointed  out  some  provision 
in  the  State  or  United  States  Constitution  which 
clearly  prohibits  them." 
139 


CONCERNING  JUSTICE 
Further,  it  is  a  maxim  of  the  judiciary,  from  the 
beginning  and  now,  that  no  statute  should  be  re- 
fused efifect  unless  clearly  contrary  to  some  pro- 
vision of  the  constitution,  —  unless  the  conflict 
is  evident  beyond  a  reasonable  doubt.  This  is 
a  maxim,  a  canon  of  interpretation,  that  courts 
always  have  in  mind  and  apply  in  considering 
the  question  of  the  constitutionaHty  of  a  statute. 
Thus  scrupulous  are  the  courts  to  keep  within 
their  proper  sphere,  to  respect  the  limits  of  their 
powers.  If  the  legislatures  would  be  equally 
scrupulous,  would  themselves  refrain  from  in- 
fringing on  those  rights  and  Uberties  of  the  citi- 
zen guaranteed  by  the  constitution,  there  would 
be  less  restriction,  less  friction,  less  turmoil,  less 
need  of  the  judicial  check,  less  injustice. 

But  the  complaints  against  the  courts  are  not 
all  because  of  their  holding  statutes  unconstitu- 
tional. Many  have  felt  that  courts  sometimes 
erred  in  having  too  much  respect  for  the  legisla- 
tive power  and  because  of  that  respect  have  al- 
lowed constitutional  rights  and  liberties  to  be 
140 


AN  INDEPENDENT  JUDICIARY 
sacrificed  at  the  behest  of  majorities  and  often 
at  the  behest  of  active,  interested  minorities 
more  insistent  than  the  inert  majority.  The 
decision  of  the  United  States  Supreme  Court  in 
the  Charles  River  Bridge  case,  ii  Peters  420, 
was  mourned  by  such  men  as  Webster,  Kent, 
Story,  and  others  as  breaking  down  the  safe- 
guards of  the  constitution.  The  decision  in  the 
Slaughter  House  cases  was  regarded  by  many 
able  jurists  as  ignoring  that  provision  of  the 
XlVth  amendment  to  the  Federal  Constitution 
forbidding  any  denial  to  any  one  of  the  equal 
protection  of  the  laws.  The  Elevator  cases, 
holding  that  elevators  were  public  utiUties  and 
therefore  subject  to  public  control  as  to  charges 
for  service,  though  the  owners  had  no  special 
franchise,  no  part  of  public  power,  are  even  now 
thought  to  have  made  a  wide  breach  in  the  con- 
stitutional barriers  against  the  invasion  of  pri- 
vate rights.  The  decision  in  the  Chinese  Depor- 
tation cases,  149  U.  S.  698,  shocked  the  sense  of 
justice  of  many.  It  was  to  the  effect  that  Con- 
141 


CONCERNING  JUSTICE 

gress  could  empower  the  executive  to  arrest  upon 
its  own  warrant  any  person  it  claimed  to  be  an 
alien  unlawfully  residing  in  the  United  States 
and  to  deport  him  without  trial,  unless  he  could 
affirmatively  prove  to  the  satisfaction  of  a  single 
judge  (to  be  selected  by  the  executive),  and  by 
a  specified  kind  of  evidence  only,  that  he  was 
not  guilty,  however  ample  and  probative  other 
evidence  might  be  adduced  and  however  impos- 
sible to  produce  the  specified  evidence.  Justices 
Fuller,  Field,  and  Brewer  vigorously  dissented 
on  the  ground  that  such  action  by  the  executive, 
though  under  the  authority  of  Congress,  was  in 
violation  of  the  constitutional  guaranties  against 
arrest  without  judicial  warrant,  against  depriva- 
tion of  liberty  without  trial  by  jury  and  due 
process  of  law. 

Justice  Brewer  after  quoting  Madison,  that 
banishment  is  among  the  severest  of  punish- 
ments, went  on  to  say:  "But  punishment  implies 
a  trial.     'No  person  shall  be  deprived  of  life, 

liberty  or  property  without  due  process  of  law.' 

142 


AN  INDEPENDENT  JUDICIARY 
Due  process  of  law  requires  that  a  man  be  heard 
before  he  is  condemned,  and  both  heard  and  con- 
demned in  the  due  and  orderly  procedure  as 
recognized  by  the  common  law  from  time  im- 
memorial." 

In  my  research  I  have  found  more  cases  where 
it  has  seemed  to  me  the  courts  have  construed 
constitutional  guaranties  too  strictly,  than  where 
they  have  construed  them  too  liberally.  The 
tendency  has  been  rather  away  from  the  enforce- 
ment of  constitutional  guaranties  and  to  allow 
legislative  encroachments  upon  them.  I  regard 
this  as  a  very  dangerous  tendency.  Perhaps 
the  encroachments  have  not  been  at  first  per- 
ceived, but  I  think  courts  should  be  vigilantly 
on  the  watch  for  them,  otherwise  individual 
rights  guaranteed  to  the  people  by  the  constitu- 
tion may  be  gradually  weakened  and  finally  de- 
stroyed. This  duty  of  the  courts  was  declared 
in  the  case  of  Boyd  v.  United  States,  ii6  U.S. 
6i6  at  page  641  —  where  in  refusing  effect  to  a 
statute  requiring  the  production  of  his  books 
143 


CONCERNING  JUSTICE 
and  papers  by  a  defendant  in  proceedings  for 
forfeiture,  the  court  said:  "Though  the  proceed- 
ing in  question  is  devested  of  the  aggravating 
efifects  of  actual  search  and  seizure,  yet  it  contains 
their  substance  and  essence,  and  effects  their 
substantial  purpose.  It  may  be  that  it  is  the 
obnoxious  thing  in  its  mildest  and  least  repul- 
sive form;  but  illegitimate  and  unconstitutional 
practices  get  their  first  footing  in  that  way, 
namely,  by  sUent  approaches  and  slight  devia- 
tions from  legal  modes  of  procedure.  This  can 
only  be  obviated  by  adhering  to  the  rule  that 
constitutional  provisions  for  the  security  of  per- 
son and  property  should  be  liberally  construed. 
A  close  and  literal  construction  deprives  them  of 
half  their  efl&cacy  and  leads  to  gradual  deprecia- 
tion of  the  right  as  if  it  consisted  more  in  sound 
than  in  substance.  It  is  the  duty  of  courts 
to  be  watchful  for  the  constitutional  rights  of 
the  citizen  and  against  any  stealthy  encroach- 
ments thereon.      Their   motto    should  be  obsta 

principiis." 

144 


AN  INDEPENDENT  JUDICIARY 

A  review  of  the  cases  in  which  the  courts  have 
been  called  upon  to  decide  whether  a  statute 
breaks  over  the  constitutional  Hmitation  will 
demonstrate  to  any  dispassionate  person  that 
upon  questions  of  expediency,  of  the  general 
welfare,  or  even  of  justice,  the  judges  rarely  if 
ever  oppose  their  opinion  to  that  of  the  legisla- 
tors. The  courts  do  not  obstruct  the  current 
of  progress;  they  only  keep  it  from  overflowing 
its  banks  to  the  devastation  of  the  constitutional 
rights  of  the  people. 


145 


CHAPTER  IX 

THE  NECESSITY  OF  MAINTAINING  UNDIMIN- 
ISHED  THE  CONSTITUTIONAL  LIMITATIONS 
AND   THE  POWER  OF   THE  COURTS   TO 
ENFORCE  THEM.  —  CONCLUSION 

DESPITE  the  lessons  of  history  showing 
the  need  of  specified  limitations  upon 
the  legislative  power  to  ensure  personal  Hberty 
and  justice,  it  is  still  urged  by  the  impatient 
that  this  check  upon  legislative  action  should 
be  removed,  or  at  least  that  the  legislature 
should  itself  be  the  judge  of  the  constitution- 
ality of  its  acts,  and  that  the  legislatures  as 
the  representatives  of  the  people  may  be  trusted 
to  observe  constitutional  requirements  and  limi- 
tations. From  the  beginning,  however,  the 
people  of  this  country  have  not  fully  trusted 
their    legislatures.      They    have    not    only    set 

bounds  to  legislative  power,  but  within  those 
146 


CONCLUSION 
bounds  they  have  imposed  in  most  instances  the 
check  of  an  executive  veto.  They  have  also 
complained  of  their  legislatures  far  more  loudly 
than  they  have  of  their  courts,  and  latterly  have 
subjected  them  to  the  initiative  and  referendum 
and  in  some  instances  to  the  recall. 

Perhaps  the  judgment  of  those  urging  that  the 
legislature  should  be  trusted  not  to  trespass  on 
the  constitutional  rights  of  the  people  may  be 
enlightened  by  recaUing  some  instances  of  legis- 
lative action  upon  constitutional  questions  left 
to  its  decision  by  the  constitution  itself.  It  is 
hardly  necessary  to  cite  instances  of  the  abuse  of 
this  power  in  the  matter  of  determining  who  are 
entitled  to  seats  in  the  legislature.  It  is  common 
knowledge  that,  in  the  past  at  least,  both  law 
and  fact  have  often  been  over-ridden  for  parti- 
san advantage.  As  an  illustration  of  how  far  a 
legislature  will  sometimes  go  in  this  direction  I 
may  cite  a  recent  instance  in  Maine.  The  con- 
stitution of  that  state  provides  (Art.  IV,  Pt.  3, 
Sec.  11)  that  "no  person  holding  any  office  under 
147 


CONCERNING  JUSTICE 
the  United  States  (post  officers  excepted)  shall 
have  a  seat  in  either  house  of  the  legislature 
during  his  continuing  in  such  office."  This  pro- 
vision was  in  the  original  constitution  of  1 821,  and 
until  the  legislative  session  of  19 13  the  exception 
of  "post  officers"  was  understood  to  refer  to  offi- 
cers in  the  postal  service  and  such  officers  often 
held  seats  in  the  legislature  without  question. 
In  1 91 3,  however,  the  House  of  Representatives 
held  for  awhile  that  the  exception  referred  only 
to  miHtary  officers  of  the  United  States  stationed 
at  military  posts  within  the  state,  though  no 
such  officer  had  ever  held  a  seat  in  the  legislature. 
That  legislatures  are  prone  to  disregard  con- 
stitutional provisions  is  also  manifest  in  the 
vast  amount  of  special  legislation  enacted  de- 
spite constitutional  prohibitions  of  such  legisla- 
tion. There  are  also  numerous  instances  where 
legislatures  while  perfunctorily  heeding  the  letter 
of  the  constitution  consciously  violate  its  spirit 
and  evade  its  requirements.  In  many  states 
there  is  a  constitutional  provision  that  no  legis- 
148 


CONCLUSION 
lative  act  shall  become  effective  until  after  a 
specified  time  has  elapsed  from  its  enactment 
"except  in  cases  of  emergency,"  which  emer- 
gency, however,  is  to  be  declared  in  the  act  itself. 
This  provision,  of  course,  is  to  give  the  people 
time  to  understand  the  statute  and  prepare  to 
obey  it.  The  word  "emergency"  in  the  excep- 
tion implies  a  sudden,  unexpected  happening. 
It  is  defined  in  Webster  as  a  "pressing  neces- 
sity; an  unforeseen  occurrence  or  combination  of 
circumstances  which  calls  for  immediate  action 
or  remedy."  In  Indiana  in  one  legislative  ses- 
sion, out  of  200  acts,  155  were  made  to  take 
effect  at  once  by  a  recital  that  an  emergency 
existed  therefor.  In  Illinois  a  two-thirds  vote 
of  all  the  members  elected  to  each  house  is  re- 
quired for  the  adoption  of  the  emergency  clause. 
Among  the  acts  of  the  last  session  containing 
the  emergency  clause  was  one  appropriating 
$600  for  printing  the  report  of  a  monument 
association.  In  Tennessee  the  exception  was  of 
cases  where  "the  public  welfare"  required  an 
149 


CONCERNING  JUSTICE 

earlier  date.  Out  of  265  laws  passed  at  one 
session  230  contained  the  declaration  that  the 
public  welfare  required  their  going  into  effect 
immediately.  In  Texas  the  constitution  provides 
that  no  bill  shall  be  passed  until  it  has  been  read 
on  three  several  days  in  each  house  and  free 
discussion  allowed  thereon,  but  that  "in  cases  of 
imperative  public  necessity  four-fifths  of  the 
house  may  suspend  the  rule."  Out  of  118  laws 
passed  at  one  session  all  but  five  contained  the 
statement  that  "imperative  pubHc  necessity" 
required  suspension  of  the  rule. 

Legislatures  also  seem  prone  to  disregard  the 
constitutional  provision  for  the  referendum  de- 
spite the  strong,  explicit  language  of  that  provi- 
sion. In  California  the  constitutional  provision 
is  as  follows:  "No  act  shall  go  into  effect 
until  ninety  days  after  the  adjournment  of  the 
legislature  which  passed  such  act  .  .  .  except 
urgency  measures  necessary  for  the  immediate 
preservation  of  the  public  peace,  health  or  safety, 
passed  by  a  two-thirds  vote  of  all  the  members 
150 


CONCLUSION 
elected  to  each  house."    Surely  the  language  of 
the    exception    is    strong    and    forceful.    Two- 
thirds  of  all  the  members  elected  to  each  house 
must  hold  that  the  measure  is  urgent,  not  admit- 
ting of  delay,  that  the  pubUc  peace,  health  or 
safety,  not  the  mere  interests  or  convenience  of 
individuals  or  localities,  is  threatened  and  that 
the   danger   is   imminent,    requiring    immediate 
action.    Among  other  instances,  the  legislature  of 
California  at  its  special  session  of  191 1  adjudged 
an  act  to  validate  certain  defective  registrations 
of  voters  in  some  municipalities   to  be  an  ur- 
gency measure  within  the  language  of  the  excep- 
tion; also  an  act  to  change  the  boundaries  in  a 
Reclamation  District.    Oregon  has  a  similar  con- 
stitutional requirement  and  exception  which  its 
legislature    does    not    always    observe.    At    the 
session  of  191 1,  among  other  cases  the  legisla- 
ture adjudged  an  act  authorizing  a  county  to 
levy  a  tax  for  advertising  the  county's  resources 
to  be  within  the  exception;  also  an  act  dividing 
a  road  district;  but  an  act  appropriating  money 
151 


CONCERNING  JUSTICE 
to  guard  against  the  bubonic  plague  was  not  de- 
clared to  be  within  the  exception.  In  Oklahoma 
with  a  similar  constitutional  provision  and  ex- 
ception, the  legislature  seems  to  have  run  riot. 
At  the  session  of  1910  a  very  large  proportion,  if 
not  a  majority,  of  the  statutes  were  adjudged  to 
be  within  the  exception.  Among  them  was  an 
act  to  pay  the  mileage  and  per  diem  of  the  mem- 
bers; an  act  providing  stenographers  for  the 
Supreme  Court;  an  act  authorizing  the  sale  of 
four  tracts  of  land  at  public  sale;  an  act  to  pay 
J.  J.  O'Rourke  $238.10  for  room  rent.  On  the 
other  hand,  an  act  to  reimburse  the  Governor 
$5000  expended  by  him  for  state  purposes,  and 
an  act  to  reimburse  a  sheriff  $4000  expended 
by  him  in  the  support  of  state  prisoners  were 
not  so  considered. 

True,  Oklahoma  is  a  new  and  radical  state, 
but  let  us  turn  to  the  extreme  east,  to  Maine  with 
its  heritage  of  law-abiding  traditions  from  the 
parent  state  of  Massachusetts.  Maine  has  also 
adopted  the  referendum  in  language  similar  to 
152 


CONCLUSION 
that  in  the  California  constitution,  including 
the  exception.  The  state  had  got  along  quite 
comfortably  without  making  Lincoln's  birthday 
a  legal  holiday,  but  in  1909  the  legislature  awoke 
to  the  imminent  danger  to  the  public  peace, 
health  or  safety  of  the  state  in  longer  delay  and 
so  established  such  a  holiday  at  once  without 
according  to  the  people  their  right  of  review. 
The  town  of  Eden,  in  which  is  situated  Bar  Har- 
bor, a  summer  resort,  had  by  vote  for  sometime 
excluded  automobiles  without  any  apparent 
danger  to  the  pubhc  peace,  health  or  safety,  but 
at  its  last  session  in  19 13  the  legislature  by  a 
two-thirds  vote  of  all  the  members  elected  to 
each  house  adjudged  that  the  pubHc  peace,  health 
or  safety  would  be  imperiled  by  postponing  for 
ninety  days  the  operation  of  an  act  authorizing 
a  repeal  of  the  vote. 

In  all  the  instances  cited,  which  are  but  few 

out  of  many,  it  is  difl&cult  to  see  how  the  ninety 

days'  postponement  of  the  operation  of  the  acts 

cited  could  imperil  the  peace,  health  or  safety  of 

153 


CONCERNING  JUSTICE 
the  public,  however  much  it  might  inconvenience 
or  annoy  individuals  or  localities.  These  in- 
stances should,  however,  throw  considerable 
doubt  upon  the  proposition  that  the  constitu- 
tional rights  of  the  people  are  safe  in  the  hands 
of  the  legislative  department  without  the  check 
of  the  judiciary.  I  have  somewhere  seen  the 
statement  that  during  recent  years  upwards  of 
500  acts  of  federal  and  state  legislation  have 
been  held  by  the  courts  to  be  in  violation  of 
some  constitutional  provision,  and  that  this  fact 
should  arouse  the  people  to  put  some  check 
on  such  exercise  of  the  judicial  power.  On  the 
contrary,  it  should  arouse  the  people  to  insist  on 
the  retention  of  that  power,  and  to  elect  wiser 
legislators  who  will  more  faithfully  respect  their 
oaths  to  observe  constitutional  limitations. 

But  another  and  different  proposition  is  urged 
upon  us.  It  is  not  to  leave  the  legislature  without 
check  upon  the  tendency  to  disregard  constitu- 
tional limitations  upon  its  power,  but  to  subject 
the  judicial  check  itself  to  reversal  by  a  majority 
154 


CONCLUSION 
of  that  part  of  the  electorate  choosing  to  act  on 
the  matter.  It  is  proposed  that  whenever  a 
court  of  last  resort  shall  adjudge  that  a  statute 
trespasses  upon  the  reserved  constitutional  rights 
of  the  individual,  an  appeal  may  be  taken  direct 
to  the  electorate,  and  that  if  a  majority  of  those 
choosing  to  vote  on  the  question  desire  the 
statute  to  stand,  the  constitution  shall  thereafter 
be  held  to  be  amended  to  that  extent.  It  is 
submitted  that  such  a  procedure  would  destroy 
all  constitutional  guaranties,  no  matter  what 
safeguards  are  attempted.  Is  there  any  assur- 
ance that  such  a  majority  would  be  more  con- 
siderate of  the  individual's  right  to  life,  liberty 
and  property  than  their  representatives  whom 
they  have  selected  or  should  have  selected  for 
their  virtue  and  wisdom,  and  who  are  sworn,  as 
well  as  the  judges,  to  respect  constitutional 
guaranties? 

Under  the  present  procedure  for  amendment 
to    constitutions,    propositions    for    amendment 
are  first  considered  and  debated  face  to  face  in  a 
155 


CONCERNING  JUSTICE 
legislature  or  constitutional  convention  by  repre- 
sentatives of  the  people,  and  cannot  be  sub- 
mitted to  the  people  until  after  opportunity  for 
full  and  free  discussion  by  their  representatives, 
and  the  people  themselves  have  thereby  been 
more  or  less  prepared  for  its  consideration. 
Even  under  this  procedure,  amendments  have 
been  adopted  that  the  people  have  afterward 
regretted.  There  is  now  much  agitation  for  the 
"short  ballot,"  for  restoring  to  the  chief  executive 
the  power  of  appointment  of  important  officials, 
a  power  at  first  possessed  by  him,  but  taken 
away  by  later  constitutional  amendments.  The 
adoption  of  the  "initiative  and  referendum" 
has  not  produced  the  beneficial  results  expected. 
It  is  found  that  the  initiative  sometimes  pro- 
duces defective,  unworkable  statutes,  and  that 
the  referendum  can  be  used  to  delay  and  even 
veto  expedient  legislation. 

Under  the  proposed  procedure  the  questions 
whether  the  constitution  should  be  amended  and 
as  to  the  nature  of  the  amendment  are  sprung 
156 


CONCLUSION 
upon  the  people  without  this  preliminary  exam- 
ination, debate  and  approval  by  their  chosen 
representatives,  and  this  often,  if  not  always,  in 
times  of  popular  excitement.  With  such  a  pro- 
cedure I  can  see  no  more  stability  of  right,  no 
more  security  for  justice,  than  under  any  un- 
limited, absolute  government. 

How  unstable  popular  sentiment  may  be  at 
times  may  be  seen  in  the  classic  example  of  the 
citizens  of  Rome  applauding  Marius  and  Sulla 
in  turn  with  equal  fervor,  and  in  the  lesser  and 
very  recent  example  of  the  voters  of  the  city  of  ^ 
Seattle,  who  elected  a  mayor,  then  soon  recalled 
him,  and  but  Httle  later  re-elected  him  by  a 
larger  majority  than  before.  Constitutions  to 
be  of  any  value  as  bulwarks  of  Hberty  should  not 
be  immediately  changeable  with  the  popular 
sentiment  of  the  day,  but  slowly  and  only  after 
long  reflection  and  discussion.  They  should 
contain  only  the  results  of  long  thought  and 
long  experience. 

Legislation  is  ever  active,  ever  moving  this 
157 


CONCERNING  JUSTICE 

way  and  that  way,  ever  experimenting,  enacting 
new  statutes  and  amending  and  repealing  old 
ones,  now  imposing  fetters  on  individual  liberty, 
now  striking  them  off  and  perhaps  imposing 
others.  Even  in  England  and  America,  where 
personal  liberty  of  action  is  most  prized,  time 
was  when  statutes  were  enacted  almost  putting 
people  and  business  in  strait-jackets.  In  English 
Norfolk  as  late  as  Henry  VIII's  time  no  one  was 
to  "dye,  shear  or  calender"  cloth  except  in  the 
town  of  Norwich;  and  no  one  in  the  northern 
counties  was  to  make  "worsted  coverlets"  except 
in  the  city  of  York.  In  the  reign  of  Elizabeth  a 
statute  was  passed  forbidding  the  eating  of 
meat  on  Wednesday  and  Saturdays  and  this  not 
on  the  score  of  health  or  religion  but  avowedly 
to  increase  the  price  of  fish.  Statutes  fixing  the 
weight  and  price  of  loaves  of  bread  and  the  size 
and  price  of  a  glass  of  ale  were  not  formally 
repealed  till  1824.  The  famous  Statute  of  La- 
borers forbade  laboring  men  to  ask  or  receive  more 
than  a  prescribed  low  sum  for  their  labor  and 
158 


CONCLUSION 
also  forbade  their  moving  about  seeking  employ- 
ment. The  statutes  against  forestalling,  regrat- 
ing,  and  engrossing  were  not  formally  repealed 
until  1844.  In  early  times  in  New  England  also, 
statutory  attempts  were  made  to  fLx  the  price  of 
various  commodities  and  the  wages  of  various 
kinds  of  workmen.  Men  were  fined  for  accepting 
higher  than  the  prescribed  wages.  The  Sunday 
laws  in  some  places  forbade  walking  about  on 
Sunday  except  "reverently  to  go  to  and  return 
from  meeting."  Everywhere  was  the  ever  present 
tendency  of  the  legislative  power  to  invade  and 
direct  every  function  of  society,  —  social,  reli- 
gious, poHtical,  and  economical.  It  should  be 
noted  that  all  these  and  similar  statutes  were 
under  governments  unrestrained  by  written  con- 
stitutions and  bills  of  right  enforced  by  an  in- 
dependent judiciary. 

Though  from  time  to  time  many  restrictive 

statutes  have  been  modified  and  many  repealed, 

other   restrictive   statutes   have   been    enacted. 

Today  the  same  process  is  going  on.    While 

159 


CONCERNING  JUSTICE 
now   and   then   restrictions   and   embargoes  of 
longer  or  shorter  standing  are  removed,  there  is 
still  the  same  tendency  to  enact  other  restric- 
tions   and    prohibitions.    At    every    session    of 
Congress  and  of  the  state  legislatures  measures 
are  constantly  proposed  hampering  in  some  way 
the  freedom  of  the  citizen  in  his  occupation,  in 
his  pursuit  of  happiness.    Demands  are  being 
made  upon  the  legislative  department  by  one 
class  or  interest  for  legislation  to  restrain  other 
classes  or  interests,  but  for  exemption  for  itself. 
I         In   earher  times   there  were   statutes  fixing  a 
\        maximum    wage   for   labor,  and    though    these 
1        proved  ineffectual  it  is  now  proposed  to  fix  a 
I       minimum  wage,  even  though  it  should  prove  to 
I       be  much  more  than  the  labor  is  worth.    There 
are  also  proposed,  and  in  many  instances  enacted, 
statutes  restricting  the  freedom  of  the  workman 
as  to  his  output,  of  the  employer  as  to  his  direc- 
tion of  his  business.    The  natural  activities  of 
men  are  sought  to  be  hampered  and  handicapped 
in  vexatious  ways.    In  illustration,  I  quote  the 
1 60 


CONCLUSION 
following  from  the  "Boston  Herald"  of  June  5, 
1914: 

"Twenty-five  states  and  the  United  States 
itself  forbid  any  discrimination  by  an  employer 
against  union  men.  Utah  alone  has  a  law  to 
protect  the  non-union  men  from  organized  dis- 
crimination of  union  labor  to  drive  him  from  his 
trade.  Several  of  our  states  require  that  all 
public  printing  shall  bear  the  union  label.  One 
extends  that  rule  to  all  stationery.  Twelve 
states  require  employers  advertising  for  help  to 
mention  in  the  advertisement  the  existence  of 
a  strike.  The  Minnesota  statute  provides  that, 
per  contra,  no  employer  shall  require  any  state- 
ment from  a  person  seeking  employment  as  to 
his  participation  in  a  strike.  Eight  states  have 
enacted  statutes  exempting  labor  organizations 
from  their  respective  anti-trust  laws.  The  un- 
scrupulous employer  may  yet  find  the  labor  union 
the  best  means  of  throttling  his  competitors  and 
securing  a  monopoly."  There  seems  at  times 
to  be  a  frenzy  for  such  legislation.  Only  a  vivid 
161 


CONCERNING  JUSTICE 

imagination  can  adequately  picture  what  might 
result  if  Congress  and  the  state  legislatures,  or 
the  inconstant  majority  of  the  electorate,  were 
freed  from  all  constitutional  limitations  or  from 
the  check  of  an  independent  judiciary. 

Though  Great  Britain,  our  mother  country, 
has  no  written  constitution  and  no  judiciary 
empowered  to  enforce  its  limitations,  it  is  the 
happy  possessor  of  a  practically  homogeneous 
people  of  the  Anglo-Saxon  race,  little  affected 
by  irnmigration,  and  imbued  for  centuries  with 
a  deep  regard  for  personal  liberty  and  private 
rights.  Yet,  even  there  today,  statutes  are 
'Hemanded  and  sometimes  enacted  in  derogation 
of  them.  In  this  country  the  population  as  the 
result  of  great  immigration  is  more  heterogeneous. 
It  comprises  races  and  peoples  of  diverse  tempera- 
ments, of  diverse  experiences,  of  diverse  tradi- 
tions, many  unschooled  in  self-government  and 
lacking  in  that  traditional  reverence  for  liberty 
and  order  so  characteristic  of  the  Teutonic  races. 

We  even  find  some  classes  openly  declaring  that 
162 


CONCLUSION 

if  they  can  get  possession  of  the  government 
they  will  exploit  the  rest  of  the  people  for  their 
own  benefit.  They  essay  also  to  bargain  their 
votes  for  special  legislation  in  their  favor  at  the 
expense  of  the  people  at  large  and  without  regard 
to  the  principles  of  equality  of  right. 

With  such  a  population  with  its  universal 
suffrage,  were  it  not  for  our  written  constitutions 
with  their  Bills  of  Rights  and  with  an  inde- 
pendent judiciary  to  guard  them,  there  would  be 
no  security  here  for  personal  liberty  and  rights 
We  should  be  in  the  condition  of  the  people  of 
France  as  depicted  by  Wm.  S.  Lilly  in  his  recent 
book,  "The  New  France."  He  wrote:  "It  is 
now  more  than  a  century  since  the  principles  of 
1789  were  formulated  there.  But  in  no  country, 
not  even  in  Russia,  is  individual  freedom  less. 
The  state  is  as  ubiquitous  and  as  autocratic  as; 
under  the  worst  Bourbon  or  Oriental  despots. 
Nowhere  is  its  hand  so  heavy  upon  the  subject 
in  every  department  of  human  life.    Nowhere  is 

the  negation  of  the  value  and  of  the  rights  of 
163 


CONCERNING  JUSTICE 
personal  independence  more  absolute,  more  com- 
plete, and  more  effective."  Yet  France  is  a 
republic  with  manhood  suffrage  and  with  an 
elective  legislature.  But  its  courts  are  not 
vested  with  any  power  to  conserve  any  rights 
of  the  people  against  legislative  caprice. 

Conclusion 

The  thesis  I  have  endeavored  to  support  in 
these  lectures,  so  far  as  I  have  a  thesis,  is  this: 
(i)  that,  after  all,  human  justice  consists  in 
securing  to  each  individual  as  much  liberty  of 
action  in  the  exercise  of  his  physical  and  mental 
powers  and  as  much  liberty  to  enjoy  the  fruits  of 
such  action  as  is  consistent  with  like  liberty  for 
other  individuals,  and  with  such  restrictions 
only  as  are  necessary  for  the  welfare  of  society 
as  a  whole  without  discrimination  for  or  against 
any  individual;  and  (2)  that  that  justice  is  more 
(I  firmly  secured  by  a  government  with  a  division 
I  of  powers,  with  a  written  constitution  excluding 
from  governmental  interference  such  personal 
164 


CONCLUSION 

\l  rights  as  long  experience  has  shown  to  be  neces- 
/  sary  both  for  the  happiness  and  efficiency  of  the 
i  individual  subject  and  for  the  welfare  and  effi- 
ciency of  all;  and  (3)  finally  with  an  independent 
judiciary  to  defend  those  rights  when  assailed, 
as  they  often  have  been,  and  will  be, by  impatient 
and  changeable  majorities. 

It  may  be  admitted  that  the  courts  sometimes 
err  in  their  interpretation  of  the  constitution 
and  the  laws,  since  judges,  however  carefully 
selected,  are  but  men;  but  there  must  be  some- 
where in  the  body  poUtic  of  a  free  state  some 
body  of  men  with  the  power  of  authoritative 
interpretation  of  the  fundamental  law  as  well  as 
other  laws.  Does  earher  history  or  later  ex- 
perience point  to  any  better  equipped,  more 
stable,  more  safe  tribunal?  Should  not  the 
people  endeavor  to  raise  rather  than  lower  the 
position  of  the  courts;  to  conserve  rather  than 
impair  that  freedom,  impartiality,  and  inde- 
pendence of  the  judges  declared  by  the  people  of 
Massachusetts  in  their  Declaration  of  Rights, 
165 


CONCERNING  JUSTICE 
after  years  of  galling  experience  of  the  contrary, 
to  be  "essential  to  the  preservation  of  every  indi- 
vidual, his  life,  liberty,  property  and  character"? 
Are  not  they  the  reactionaries  who,  despite  the 
lessons  of  history,  would  revert  to  the  days 
of  a  dependent,  recallable,  and  hence  timid 
judiciary? 

But  justice  is  not  fully  and  certainly  secured 
by  the  maintenance  of  particular  political  institu- 
tions, however  excellent.  Political  institutions 
are  not  self-acting.  They  are  only  instrumental- 
ities for  the  action  of  society.  They  are  not 
only  to  be  estabUshed  and  maintained;  they  are  to 
be  administered,  and  the  best  institutions  may 
be  maladministered.  Even  under  such  a  system 
of  government  as  I  have  endeavored  to  show  to 
be  the  best  yet  devised  to  secure  justice,  injustice 
is  still  often  suffered  by  the  individual  or  by 
society.  Oppressive  statutes  within  the  legisla- 
tive power  are  too  readily  enacted.  Abuses  in 
administration  are  too  long  permitted  to  exist. 
The  only  remedy  for  these  is  a  more  enlightened 
i66 


CONCLUSION 

public  opinion,  a  wider  diffusion  of  the  spirit  of 
impartiality,  a  greater  realization  of  the  right 
and  need  of  every  person  to  life,  liberty,  and  the 
results  of  his  industry  and  economy. 

Nor  are  the  judgments  of  our  courts  always 
righteous.  Some  of  the  instances  of  unrighteous 
judgments  result  from  failure  to  ascertain  and 
apply  the  truth  as  to  the  facts  of  the  case;  some 
from  errors  in  judgment;  some  from  lack  of 
firmness  in  judges  in  enforcing  the  known  rights 
of  the  individual  on  the  one  hand,  or  those  of 
society  on  the  other;  and  perhaps  a  very  few 
from  incompetency  or  corruption.  These  causes 
can  be  removed  to  a  large  extent,  by  a  more 
rigid  insistence  on  skill,  abihty,  industry,  learning, 
and  courage  on  the  part  of  those  assuming  to 
administer  justice  as  attorneys  and  counselors. 
The  same  insistence  in  the  selection  of  judges 
will  lessen  the  injustice  resulting  from  their 
errors  in  judgment  and  from  their  lack  of  firm- 
ness. 

There  is  yet  another  cause  of  injustice,  the 
167 


CONCERNING  JUSTICE 

delay  and  expense  in  obtaining  even  righteous 
judgments.  It  is  an  axiom,  that  justice  delayed 
is  justice  denied.  This  delay  and  expense  are 
often  charged  against  the  courts  and  judges,  as 
if  they  had  full  control  over  judicial  procedure. 
It  is  not  the  judges  but  the  legislature  that 
shapes  the  judicial  system  and  prescribes  the 
judicial  procedure,  so  far  as  they  are  not  fixed 
by  the  constitution. 

It  is  not  the  courts  but  the  legislatures  that 
provide  for  so  many  appeals  and  allow  so  many 
stays  and  consequent  delays.  Judges  and  lawyers 
the  country  over  are  urging  a  more  simplified, 
a  more  speedy,  and  less  expensive  procedure. 
They  are  also  urging  the  establishment  of  more 
courts  with  more  judges  to  cope  with  the  con- 
stantly increasing  Utigation,  in  order  that  the 
wrongs  against  the  individual  and  the  wrongs 
against  society  may  be  redressed  with  a  minimum 
of  delay  and  cost.  It  is  the  legislatures  that 
hesitate  and  often  it  is  the  legislatures  that  tie 

the  hands  of  the  judges.    In  some  states  it  is 
i68 


CONCLUSION 

sought  to  deprive  the  judges  of  their  proper  in- 
fluence in  jury  trials.  In  some  states  it  is  even 
sought  to  prevent  them  from  saying  more  than 
yes  or  no  to  proposed  instructions  to  a  jury. 
In  many  states  nearly  the  whole  matter  of 
procedure,  its  various  steps,  are  fixed  by  statute 
and  become  difficult  of  improvement.  If  courts 
could  have  more  power  and  the  legislatures  would 
interfere  less  in  matters  of  procedure,  I  am  sure 
the  cause  of  justice  would  be  better  served. 

In  conclusion,  perfect  justice  may  not  be 
attainable  by  us  imperfect  men.  As  said  by 
Addison,  "omniscience  and  omnipotence  are 
requisite  for  its  full  attainment."  Yet  it  is  our 
duty  and  especially  the  duty  of  those  of  the 
legal  profession  to  attain  to  such  approximation 
as  may  be  possible.  No  more  noble  work  can 
engage  our  powers;  no  greater  service  can  be 
rendered  mankind.  I  do  not  except  the  endow- 
ment of  schools,  colleges,  libraries,  and  the  like, 
nor  the  endowment  of  hospitals  and  other  chari- 
table institutions.  Great  as  are  the  virtues  of 
169 


CONCERNING  JUSTICE 

charity,  benevolence,  philanthropy,  piety  and 
the  like,  justice  is  a  yet  greater  virtue.  To 
quote  Addison  again,  "There  is  no  virtue  so  truly 
great  and  godlike  as  justice";  and  in  the  words  of 
Daniel  Webster's  eulogy:  "Whoever  labors  on 
this  edifice  of  justice,  clears  its  foundations, 
strengthens  its  pillars,  adorns  its  entablatures, 
or  contributes  to  raise  its  august  dome  still 
higher  in  the  skies,  connects  himself  in  name, 
fame,  and  character  with  that  which  is,  and  must 
be,  as  durable  as  the  frame  of  human  society." 


170 


JU 


University  of  California 

SOUTHERN  REGIONAL  LIBRARY  FACILITY 

305  De  Neve  Drive  -  Parking  Lot  17  •  Box  951388 

LOS  ANGELES,  CALIFORNIA  90095-1388 

Return  this  material  to  the  library  from  which  it  was  borrowed. 


UNIVERSITY  of  CALIFORNIA 

AT 

LOS  ANGELES 

riWRARY 


Ill 


3  1158  00336  4477 


'""tyyTu'V-KJ  " 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  763  344    9 


I'lllillillUllliUi'Ul'lUliUlllll'' 


:n:!!l!!!lll!'>ii!n; 


iiilUlllU''!i!lulii 


